UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


In  Acftions  at 

COMMON  LAW 


BY 

MARTIN  P.  BURKS 


For  Sale  by 

W.  C.  Stuart,  {Bookseller 
Lexington,  Va. 


T 
I1I 


COPYRIGHT,  1905 

BY 
MARTIN  P.  BURKS 


COPYRIGHT,  1912 

BY 
MARTIN  P.  BURKS 


The  Michie  Company,  Printers, 

ChariottesviUe,  Va. 

19I3 


Preface 


The  first  four  hundred  and  twenty  four  pages  of  this  book  were 
printed  in  the  Fall  of  1911,  hence  no  reference  could  be  made 
therein  to  the  Acts  of  Assembly  of  1912.  A  separate  table  of 
these  Acts,  so  far  as  they  affect  the  text,  is  given  on  p.  xxxi.  The 
residue  of  the  book,  however,  contains  the  changes  made  by  said 
Acts.  No  attempt  has  been  made  to  cite  all  of  the  Virginia  cases, 
except  in  a  few  of  the  chapters,  but  it  is  believed  that  the  cita- 
tions given  are  sufficient  to  put  the  intelligent  reader  on  the  track 
of  the  authorities.  Frequent  reference  has  been  made  to  the  En- 
cyclopaedias and  to  monographic  notes  containing  collections  of 
cases  .where  it  was  deemed  desirable  to  give  a  fuller  citation  of 
authorities  than  could  be  given  in  the  notes  to  the  text.  Part  II 
of  the  book  consists  of  Stephen's  Rules  of  Pleading,  taken  from 
the  eighth  American  edition.  Sections  434  and  435  and  pages 
1012-1019  are  taken  from  the  notes  of  this  edition,  which  were 
the  author's  text  in  an  earlier  edition.  As  far  as  possible  I  have 
eliminated  matter  that  was  antiquated  or  not  adapted  to  modern 
use,  and  wherever  modern  illustrations  of  the  rules  could  be 
found  I  have  either  substituted  them  for  the  illustrations  given 
by  Stephen,  or  have  given  them  as  additional  illustrations.  The 
omissions  from  the  text  are  indicated  by  stars,  and  the  new  mat- 
ter by  brackets. 

I  beg  to  acknowledge  my  indebtedness  to  Mr.  Robert  W. 
Withers  of  the  law  faculty  of  Washington  and  Lee  University 
for  the  preparation  of  the  chapters  on  the  contract  actions  and 
the  index,  and  to  Mr.  N.  C.  Manson,  Jr.,  of  the  Lynchburg,  Va. 
bar  for  the  preparation  of  the  chapter  on  Mechanics'  Liens. 
These  chapters  have  been  simply  edited  by  me. 

M.  P.  B. 
Lexington,  Va., 
January, 


Table   of  Contents 


CHAPTER  I. 
REDRESS  OF  PRIVATE  WRONGS — DISTRESS  FOR  RENT. 

§     1.  Self-defence — Recaption — Abatement   of   nuisance. 

§     2.  Distress. 

§     3.  Distress  for  taxes  and  officers'  fee  bills. 

§     4.  Distress  for  rent. 

§     5.  Interest  on  rent.  , 

§     6.  Limitation  of  time  to  distrain. 

§     7.  By  whom  distress  warrant  levied. 

§     8.  Irregularity  or  illegality  in  making  distress. 

§     9.  Disposition  of  property  levied  on. 

§  10.  Delivery  or  forthcoming  bond  and  proceedings  thereon. 

§  11.  What  property  may  be  distrained. 

§  12.  Redress  for  illegal  distress — At  common  law. 

§  13.  A  year's  rent  under  the  Virginia  statute. 

§  14.  Motion  on  delivery  bond — Proof. 

§  15.  Effect   of   general   covenants   to   repair. 

§  16.  Abatement  of  rent. 


CHAPTER  II. 
ACCORD  AND  SATISFACTION. 

§   17.   Introductory. 

§  18.  Definition. 

§  19.  Subject  matter. 

§  20.  Accord  without  satisfaction. 

§  21.  Persons   who   may   make   satisfaction. 

§  22.  Consideration   of  accord. 

Part  payment  of  a  liquidated  money  demand. 

New  or  additional  consideration. 

Unliquidated  or  disputed  claims. 

Acceptance   of  property. 

Acceptance  of  a  promise. 
§  23.  Pleadings — Accord   and   satisfaction. 


VI  TABLE  OF  CONTENTS 

CHAPTER  III. 
ARBITRATION  AND  AWARD. 

§  24.  Introduction. 

§  25.  Who  may  submit. 

§  26.  What  may  be  submitted. 

§  27.  Mode  of  submission. 

§  28.  Who  may  be  arbitrator. 

§  29.  The  umpire. 

§  30.  Revocation  of  submission. 

§  31.  Proceedings  before   arbitrators. 

§  32.  The  award. 

§  33.  Form  of  award. 

§  34.  Effect  of  award. 

§  35.  Mode  of  enforcing  performance  of  award. 

§  36.  Causes  for  setting  aside  award. 

§  37.  Relief  against  erroneous  award. 

§  38.  Awards,  how  pleaded. 

§  39.  Costs. 

CHAPTER  IV. 

REMITTER  AND  RETAINER. 

§  40.  Remitter. 
§  41.  Retainer. 

Order  of  payment  of  debts. 

Order  of  liability  of  estates  for  debts. 

CHAPTER  V. 
COURTS. 

§  42.  Supervisors. 

§  43.   Clerks. 

§  44.  Justices  of  the  peace. 

1.  Civil  powers  of  justices. 

Small  claims. 

2.  Proceedings  before  a  justice  on  small  claims. 

3.  Civil  bail. 

Attachment. 

4.  Unlawful  detainer. 

5.  Garnishment. 

§  45.  Circuit   and   corporation   courts. 

Corporation  courts. 
§  46.  Civil  jurisdiction  of  court  of  appeals. 

(1)  In  matters  pecuniary. 

(2)  In  matters  not  pecuniary. 


TABLE  OF   CONTENTS  VII 

CHAPTER  VI. 
PARTIES  TO  ACTIONS. 

§  47.  Proper  parties  to  actions  ex  contractu  generally. 

§  48.  Joint  and  several  contracts. 

§  49.  Proper  parties  to  actions  ex  dclicto  generally. 

§  50.  Assignees  of  contracts. 

§  51.  Assignees  of  rights  of  actions  for  torts. 

§  52.  Joint  tortfeasors. 

§  53.  Actions  by  and  against  court  receivers. 

§  54.  Partnership. 

§  55.  Executors  and  administrators. 

§  56.  Corporations. 

§  57.  Infants. 

§  58.  Insane  persons. 

§  59.  Married  women. 

§  60.  Unincorporated  associations. 

§  61.  Death  by  wrongful  act. 

§  62.  Undisclosed  principal. 

§  63.  Convicts. 

§  64.  Official  and  statutory  bonds. 

§  65.  Change  of  parties. 

§  66.  Misjoinder  and  non-joinder  of  parties. 

Too  many  or  too   few  plaintiffs  or  defendants.     Mode   of 
taking  the  objection  at  common  law. 

1.  Actions  ex  contractu. 

2.  Actions  ex  delicto. 

CHAPTER  VII. 
ORDINARY  ACTIONS  AT  LAW. 

§  67.  Classification  of  actions. 
Real   actions. 
Mixed  actions. 
Personal  actions. 
Local  and   transitory  actions. 
Actions  ex  contractu  and  ex  delicto. 

CHAPTER  VIII. 
ACTION  OF  DEBT. 

§  68.  Nature  of  action. 

§  69.  What  is  a  sum  certain. 

§  70.  Debt  to  recover  statutory  penalties. 


VIII  TABLE  OF    CONTENTS 

§  71.  Debt  on  judgments  and   decrees. 
§  72.  The  declaration  in  debt. 
§  73.  The  general  issues  in  debt. 

1.  Nil  debet. 

2.  Non  est  factum. 

3.  Nul  tiel  record. 

CHAPTER  IX. 
ACTION  OF  COVENANT. 

§  74.  Nature  of  the  action. 

§  75.  When  covenant  lies. 

§  76.  When  covenant  does  not  lie. 

§  77.  Who  may  bring  covenant. 

§  78.  The  declaration. 

§  79.  Pleas  in  action  of  covenant. 

§  80.  Covenants  performed  and  covenants  not  broken. 

§  81.  Plea  of  non  damnificatus. 

§  82.  Assumpsit  as  a  substitute  for  covenant. 

CHAPTER  X. 
ASSUMPSIT. 

§  83.  History  of  the  action  and  when  it  lies. 
§  84.  When  assumpsit  does  not  lie. 
§  85.  Waiving  tort  and  suing  in  assumpsit. 
§  86.  Of  general  and  special  assumpsit. 

Difference  between  general  and  special  assumpsit. 

When  general  assumpsit  will  not  lie. 

When   general   assumpsit  will   lie. 
§  87.  When  necessary  to  declare  specially. 
§  88.   Nature  and  constitution  of  special  counts. 
§  89.  Account  to  be  filed  with  the  declaration. 
§  90.  Avoiding  writ  of  inquiry. 

§  91.  Avoiding  writ  of  inquiry  and  putting  defendant  to  sworn  pie: 
§  92.  Misjoinder  of  tort  and  assumpsit. 
§  93.  Non-assumpsit. 
§  94.  Special  pleas. 

CHAPTER  XL 
PROCEEDINGS  BY  WAY  OF  MOTION. 

§     95.   Scope  of  chapter. 

§     96.  Proceedings  under  §   3211   of  the   Code. 


TABLE  OF  CONTENTS  IX 

§     97.  Policy  of  the  statute — Construction  of  notice. 
§     98.  When  motion  lies  under  §  3211  of  Code. 
§     99.  When   motion   does  not  lie  under  §  3211  of  Code. 
§  100.  The  manner  of  making  defence  to  motions. 
§  101.  Against   whom  judgment   may   be    given    on    motion. 
§  102.  The  trial  of  the  motion. 

§  103.  Motions   to    recover   money    otherwise    than    under    §    3211    of 
the  Code. 

CHAPTER  XII. 
ACTION  OF  ACCOUNT. 

§  104.  Nature  of  action,  and  general  rules  applicable  thereto. 
§  105.  Superseded  by  bill  in  equity. 

CHAPTER  XIII. 
UNLAWFUL  ENTRY  OR  DETAINER  AND  FORCIBLE  ENTRY. 

§  106.  Nature  and  object  of  action. 

§  107.  Plaintiff's  title. 

§  108.  Pleadings. 

§  109.  Contrasted  with  ejectment. 

§  110.  Statute   of   limitations. 

§  111.  How  possession  of  premises  recovered  from  tenant  in  default 

for  rent. 

§  112.  When  proceeding  to  be  before  justice  of  the  peace. 
§  113.  Right  of  appeal. 

CHAPTER  XIV. 

EJECTMENT. 

§  114.  Historical. 

§  115.  Ejectment  at  common  law. 

§  116.  Plaintiffs  in  ejectment  in  Virginia. 

§  117.  Plaintiff's  title. 

Adverse  possession. 
§  118.  What  may  be  recovered. 
§  119.  Defendants    in    ejectment. 
§  120.  Pleadings  in  ejectment. 

Improvements. 
§  121.  Evidence  in  ejectment. 
§  122.  Statute  of  limitations. 
§  123.  Interlocks. 


X  TABLE   OF   CONTENTS 

§  124.   Equity  jurisdiction. 
§  125.  Verdict. 
§  126.  Judgment. 

CHAPTER  XV. 

• 

DETINUE. 

§  127.  Object  of  the  action. 

§  128.  Essentials  to  maintain  the  action. 

§  129.  Parties. 

§  130.  Description   and   value   of   the   property. 

§  131.  General  issue. 

§  132.  Death  or  destruction  of  property  pendente  lite. 

§  133.  Verdict. 

§  134.  Execution. 

§  135.  Preservation  of  property. 

CHAPTER  XVI. 
INTERPLEADER. 

§  136.  Nature  of  the  proceeding. 

§  137.  Rights  of  officer. 

§  138.  Rights  of  creditor. 

§  139.  Rights  of  claimant. 

§  140.  Proceedings  by  the  court. 

CHAPTER  XVII. 
REPLEVIN. 

§  141.  Nature  of  action  at  common  law. 

§  142.  The  declaration. 

§  143.  Different  kinds  of  replevin. 

§  144.  The  defence. 

§  145.  The  judgment. 

§  146.  The  modern  action  of  replevin. 

§  147.  Replevin  in  Virginia. 

CHAPTER  XVIII. 
TRESPASS  AND  TRESPASS  ON  THE  CASE. 

§  148.  Meaning  of  terms. 

§  149.  Distinction  between  trespass  and  case. 


TABLE   OF    CONTENTS  XI 


§  150.  Species  of  trespass  vi  et  armis. 

Trespass  to  the  person. 

Trespass  de  bonis  asportatis. 
'  Trespass  quare  clausum  fregit. 

Trespass  to  try  title. 

False  imprisonment. 

§  151.  Species  of  trespass  on  the  case  ex  delicto. 
§  152.  General  issues. 

CHAPTER  XIX. 
MALICIOUS  PROSECUTION. 

§  153.  Forms  and  essentials  of  the  action. 

§  154.  Parties. 

§  155.  Termination  of  prosecution. 

§  156.  Effect  of  conviction. 

§  157.  Guilt  of  plaintiff. 

§  158.  Probable  cause. 

§  159.  Malice. 

§  160.  Evidence. 

§  161.  Damages. 

§  162.  Civil  malicious  prosecution. 

CHAPTER  XX. 
TROVER  AND  CONVERSION. 

§  163.  Nature  of  the  action. 

§  164.  Plaintiff's  title. 

§  165.  What  may  be  converted. 

§  166.  What  constitutes  conversion. 

§  167.  Demand. 

§  168.  Return  of  property. 

§  169.  Damages. 

§  170.  General  issue. 

§  171.  Effect  of  judgment. 

CHAPTER  XXI. 

SLANDER  AND  LIBEL. 

§  172.  What  words  are  slanderous  or  libelous. 

§  173.  Parties. 

§  174.  The  declaration. 

§  175.  Malice. 

§  176.  Defences. 

§  177.  Evidence. 

§  178.  Replication. 


xii  TABLE;  OF  CONTENTS 

CHAPTER  XXII. 
RULE  DAYS  AND  OFFICE  JUDGMENTS. 

§  179.  Nature  of  rules. 

§  180.  Object  and  purpose  of  rule  days. 

Theoretically. 

Practically. 

§  181.  Proceedings  at  rules. 
§  182.  Rules  in  federal  courts. 
§  183.  Dilatory  pleas  and  time  of  filing. 
§  184.  Powers  of  court  over  proceedings  at   rules. 
§  185.  Setting  aside  office  judgment. 

Judgment  on  ari  issue  of  fact  made  by  a  dilatory  plea. 

CHAPTER  XXIII. 
VENUE  AND  PROCESS. 

§  186.  Venue. 

§  187.  How  process  is  obtained. 

In  assumpsit. 

In  covenant. 

Motion  for  judgment. 

Unlawful    detainer. 

Ejectment. 

Detinue. 

Trespass  vi  et  armis. 

Trespass  on  the   case. 

Trover. 

Slander  and  libel. 
§  188.  Nature  of  process. 
§  189.  Who  are  exempt  from  service. 
§  190.  Who  may  serve  process. 

§  191.  When  process  to  issue  and  when  returnable. 
§  192.  Service  of  process  on  natural  persons. 

Personal  service. 

Substituted  service. 
.    Married  woman. 

Non-residents. 

Infants. 

Insane  persons. 

Court  receivers. 
§  193.  Service  of  process  on  corporations. 

Domestic  corporations. 

Foreign  corporations. 

Publication  of  process. 


TABLE  OF   CONTENTS  XIII 

§  194.  Time  of  service. 
§  195.  Return  of  process. 

Service  on  officer. 

Service  on  agent. 
§  196.  Defective    service. 

CHAPTER  XXIV. 
PLEAS  IN  BAR. 

§  197.  Different  kinds  of  pleas  in  bar. 
Traverse  or  denial. 

The  common  traverse. 
The  special  traverse. 

The  general  traverse,  or  the  general  issue. 
Confession   and   avoidance. 
§  198.  Number  of  pleas  allowed. 
§  199.  Duplicity. 

CHAPTER  XXV. 
DEMURRER. 

§  200.  Introductory. 

§  201.  Definition — When  not  applicable — Time  of  filing. 

§  202.  Forms  of  demurrer — General — Special — Applicability. 

§  203.  Election  to  demur  or  plead. 

§  204.  Who  may  demur. 

§  205.  Causes  of  demurrer. 

§  206.  Effect  of  demurrer. 

§  207.  Effect  of  failure  to  demur — Pleading  over. 

§  208.  Judgment   on   demurrer. 

CHAPTER  XXVI. 

BANKRUPTCY. 

§  209.  Introductory. 

§  210.  Discharge  in  bankruptcy. 

§  211.  Plea   of   discharge. 

CIIAITKR  XXVII. 
TENDER. 

§  212.   Definition. 

§  213.  Sufficiency  of  tender  of  money. 

§  214.  Form  of  plea. 

§  215.  Effect  of  valid  tender. 


XIV  TABLE  OF   CONTENTS 

CHAPTER  XXVIII. 

LIMITATION  OF  ACTIONS. 

§  216.  Historical. 

^  217.  Nature,  effect  and  validity  of  statute. 

Limitation  of  remedy. 

Limitation  of  right. 

Adverse  possession. 

Conventional   limitations. 
§  218.  Parties  affected. 
§  219.  When   the   statute   begins  to   run. 

(1)  Demand  paper.    • 

(2)  Bank  deposits. 

(3)  Coupons. 

(4)  Calls  on  stock. 

(5)  Cloud  on  title. 

(6)  Covenant  for  general  warranty. 

(7)  Death  by  wrongful  act. 

(8)  Fraud  and  mistake. 

(9)  Malicious  abuse  of  civil  process. 

(10)  Voluntary  conveyances. 

(11)  Accounts. 

(12)  Debt  acknowledged  in  a  will. 

(13)  Judgments. 

(14)  Nuisance. 

(15)  Partners. 

(16)  Principal  and  surety. 

(17)  Co-sureties. 

(18)  Principal   and   agent. 

(19)  Attorney  and  client. 

(20)  Express    trustees,    executors,    administrators,    guard- 

ians, etc. 

(21)  Tenant  and  co-tenant. 

(22)  Landlord   and   tenant. 

(23)  Vendor  and  purchaser. 

(24)  Assignor  and  assignee. 

(25)  Persons  under  disability. 
§  220.  What  limitation  is  applicable. 

(1)  Tort  or  contract.  , 

(2)  Cases  on  contract. 

(3)  Debt  assumed  by  grantee  in  a  deed. 

(4)  Coupons. 

(5)  Debt  secured  by  mortgage,  deed  of  trust,  or  pledge. 

(6)  Lien   for  purchase  money. 

(7)  To  recover  damages  for  suing  out  an  injunction. 

(8)  Principal  and  surety. 


TABLE  OF  CONTENTS  XV 

(9)  Death  by  wrongful  act. 

(10)  Proceedings   in   federal   courts. 

(11)  Unmatured  debts. 

(12)  Foreign  contracts. 

(13)  Foreign  judgments. 

§  221.  What  stops  or  suspends  the  running  of  the  statute. 

(1)  Commencement  of  action. 

(2)  Amendment  of  pleadings. 

(3)  Removal  from  state. 

(4)  Infancy. 

(5)  Death. 

(6)  Inability   to    serve   process. 
In  equity. 

§  222.  How  defence  of  statute  is  made. 
At  law. 

(1)  By  demurrer. 

(2)  By  special  plea. 

(3)  Shown  under  the  general  issue. 

(4)  By  instructions. 
In  equity. 

In  code  states. 

Matters  of  avoidance. 
§  223.  Who  may  plead  the  statute. 

Fiduciaries. 

Strangers. 
§  224.  New  promise  or  acknowledgment. 

Effect  of  new  promise. 

Nature  of  promise  or  acknowledgment. 

Undelivered  writing. 

Provisions  in  wills. 

By  whom  promise  should  be  made. 

(1)  By  party. 

(2)  By  partners  after  dissolution. 

(3)  By  personal  representative. 
To  whom  promise  should  be  made. 
When  new  promise  should  be  made. 

§  225.  Waiver  and  estoppel. 
§  226.  Burden  of  proof. 
§  227.  Appeal  and  error. 

CHAPTER  XXIX. 
PAYMENT. 

§  228.  What  constitutes  payment. 

Voluntary  payments. 
§  229.  Application  of  payments. 


XVI  TABLE  OF  CONTENTS 

§  230.  Plea  of  payment. 

Form  of  the  plea. 

Code  states. 

Payment  and   set-off  distinguished. 

CHAPTER  XXX. 

SET-OFFS. 

§  231.  Definition. 

§  232.  Actions  in  which  available. 

§  233.  Subject  of  set-off. 

Liquidated  demands. 

Availability  of  set-offs. 
§  234.  Acquisition  of  set-offs. 

Set-off  as  between  a  bank  and  general  depositor. 
§  235.  Application  of  set-offs. 
§  236.  Pleading  set-off. 

Manner  of  pleading. 

CHAPTER  XXXI. 
RECOUPMENT. 

§  237.   Definition. 

§  238.  Common  law  recoupment. 

§  239.  Virginia  statute  of  recoupment. 

Reinvestment  of  title  to  real  estate. 

Rejection  of  plea  under  statute. 

Action  for  purchase  price  of  personal  property. 

Notice  of  recoupment. 

Essentials  of  a  valid  plea. 

Relief  in  equity. 

Recoupment  and  set-offs  contrasted. 
§  240.  Who  may  rely  upon  the  statute. 

CHAPTER  XXXIA. 
CONTINUANCES. 

§  241.  Discretion  of  trial  court. 

§  242.  When  motion  should  be  made. 

§  243.  Causes  for  continuance. 

1.  Continuance  of  right. 

2.  Absence  of  witness. 

(a)   Materiality  of  witness. 


TABLE  OF  CONTENTS  XVII 

(b)  Inability   to   prove    same   facts   by   any   other   wit- 

ness who  is  present. 

(c)  Use    of    due    diligence    to    procure    witness    or    get 

his  evidence. 

(d)  Reasonable    probability    that    witness    can    be    had 

at  another  trial. 

3.  Absence  of  papers. 

4.  Surprise. 

5.  Absence  of  counsel. 

6.  Absence  of  a  party. 

7.  Any  change  in  the  pleadings. 

8.  Failure  to   serve  process. 
§  244.  Refusing  a  continuance. 

§  245.  Cost  of  continuance. 

CHAPTER  XXXII. 

JURIES. 
• 

§  246.  Who  are   competent  to   serve. 
§  247.  Qualifications  of  jurors. 

Selection  of  jurors. 
§  248.  Objections  to  jurors. 

Challenges. 
§  249.   Special  juries. 
§  250.  Oath  of  jurors. 
§  251.  Trial  by  jury. 
§  252.  Custody  and  deliberations  of  the  jury. 

Disagreement  of  the  jury. 
§  253.  Misconduct  of  jurors. 

CHAPTER  XXXIII. 
OPENING  STATEMENT  OF  COUNSEL. 

§  254  Nature  of  statement. 
§  255.   Order   of   statement. 

CHAPTER  XXXIV. 
DEMURRER  TO  EVIDENCE. 

§  256.   Nature  of  demurrer  to  evidence. 

§  257.  Form  and  requisites  of  demurrer  and  joinder. 

§  258.  Right  to  demur. 

§  259.  Effect  of  demurrer  to  evidence. 

— b 


XVIII  TABLE  OF  CONTENTS 

§  260.  Joinder  in  demurrer. 

§  261.  Concessions   on   demurrer  to  the   evidence. 

§  262.  Procedure  on  demurrer  to  the  evidence. 

§  263.  Rule  of  decision. 

§  264.  Exceptions  to  rulings  and  writ  of  error. 

CHAPTER  XXXV. 
INSTRUCTIONS. 

§  265.   Object   of  instructions. 

§  266.  Charging  the  jury  generally. 

§  267.  Nature,  construction  and  effect  of  instructions. 

§  268.  Abstract  propositions — partial  view  of  case. 

§  269.  Scintilla  doctrine. 

§  270.  Sufficiently   instructed. 

§  271.  Conflicting  instructions. 

§  272.  Conflicting  evidence. 

§  273.  Directing  a  verdict.  • 

§  274.  Law  and  fact. 

Foreign  laws. 

Written  instruments. 

Court's  opinion  on  the  evidence. 
§  275.  Oral  or  written. 
§  276.  Time  of  giving. 

Order  of  reading  to  jury. 
§  277.   Multiplication   of  instructions. 
§  278.   Find   for  the  plaintiff. 
§  279.   Inviting  error. 
§  280.  How  instructions  are   settled. 

CHAPTER  XXXVI. 
BILLS  OF  EXCEPTION. 

§  281.  Origin  and  purpose  of  bills  of  exception. 

§  282.  How  points  are  saved. 

§  283.  Rejected   evidence. 

§  284.   Competency   of  witnesses. 

§  285.  Form  of  bill  of  exception  where  evidence  is  excluded. 

§  286.  Supplying  defects  by  reference. 

§  287.   Granting  or   refusing  instructions. 

§  288.  Motion   for  new   trial. 

§  289.   Evidence   to   support   an   instruction. 

§  289a.  Verdict  not   supported  by  the  evidence. 

§  290.  Time  and  manner  of  filing. 

§  291.  Evidence  of  authentication. 


TABLE  OF   CONTENTS  XIX 

CHAPTER  XXXVII. 
ARGUMENT  OF  COUNSEL. 

§  292.  Opening  and  conclusion. 

§  293.  Number  of  counsel. 

§  294.  Duration   of  argument. 

§  295.  Reading  law  books  to  the  jury. 

§  296.  Scope  of  argument. 

CHAPTER  XXXVIII. 
VERDICTS. 

§  297.  Different  kinds  of  verdicts. 

§  298.  Special  verdicts  and  case  agreed. 

Case  agreed. 

§  299.  Definition  and  rendition  of  general  verdict. 
§  300.  Essentials  of  a  general  verdict. 

1.  The  verdict  must  respond  to  all  the  issues. 

2.  The  verdict  must  respond  to  the  whole  of  each  issue. 

3.  The    verdict    should    not    find    matters    outside    of    the 

issues. 

4.  The  verdict  must  be  certain. 

5.  The  verdict  must  be  unanimous. 

6.  The  verdict  should  be  delivered  in  open  court. 

Sealed  verdicts. 
Chance  verdicts. 

7.  The  verdict  should  be  received  and  recorded. 

8.  Verdict  should  accord  with  instructions  of  the  court. 

9.  Verdict  should  not  be  excessive. 
10.  Verdict  should  not  be  too  small. 

Interest. 

§  301.  Entire  damages  on  defective  counts. 
§  302.   Objections   to   verdicts. 

CHAPTER  XXXIX. 

MOTIONS  AFTER  VERDICT. 

§  303.  Motion  for  a  new  trial. 

1.  Error  or  misconduct  of  the  judge. 

2.  Error  or  misconduct  of  the  jury. 

Impeachment  of  verdict  by  jurors. 

3.  Misconduct  of  counsel. 

4.  Misconduct  of  parties. 

5.  Misconduct  of  third  persons. 


XX  TABLE  OF   CONTENTS 

6.  After-discovered  evidence. 

7.  Verdict  contrary  to  the  evidence. 

8.  Accident  and  surprise. 

9.  Damages  excessive  or  too   small. 
§  304.  Number  of  new  trials — conditions. 

§  305.  Arrest  of  judgment. 

§  306.  Judgment  non  obstante  vercdicto. 

§  307.  Repleader. 

§  308.  Venire  facias  de  novo. 

CHAPTER  XL. 

MINOR  INCIDENTS  OF  TRIAL. 

§  309.  Calling  the  docket. 

§  310.  Pleas  puis  darrein  continuance. 

§  311.  Profert  and  oyer. 

§  312.  Variance. 

§  313.  Views. 

§  314.  Retraxit.      . 

§  315.  Loss  or  destruction  of  notes  or  bonds. 

Sealed   instruments. 

Negotiable  paper. 

Non-negotiable  paper. 

Summary. 

Present  state  of  law  in  Virginia. 
§  316.  Costs. 

Cost  of  new  trial. 
§  317.  Nonsuit. 

Withdrawing  a  juror. 
§  318.  Bill  of  particulars. 

Object  of  the  statute. 

In  what  cases  required. 

Finality  of  the  bill. 

Insufficient  bill. 
§  319.   Second  trial. 

CHAPTER  XLL 
JUDGMENTS. 

§  320.  Scope  of  chapter. 

§  321.  Judgments  as  liens. 

§  322.   Commencement  of  the  lien. 

Date  of  commencement. 

Time  for  docketing. 

Order  of   satisfaction. 


TABLE   OF   CONTENTS  XXI 

§  323.  Duration  of  lien. 

§  324.  Docketing. 

§  325.  Judgments   against   executors,   administrators   and   trustees. 

§  326.  Claim  of  homestead  against  judgments. 

§  327.  Instruments  having  force  of  judgments. 

§  328.  Death  of  debtor. 

§  329.   Priority   of  judgments   inter  se. 

§  330.  Judgments  of  federal  courts. 

§  331.   Foreign  judgments. 

§  332.  Collateral   attack. 

§  333.  Void  judgments. 

§  334.  Satisfaction  of  judgments. 

§  335.  Order  of  liability  of  lands  between  different  alienees. 

§  336.  Enforcement  of  judgments. 

CHAPTER  XLII. 
EXECUTIONS. 

§  337.  Execution  must  follow  judgment. 

§  338.  Issuance  of  execution. 

§  339.  Property  not  subject  to  levy. 

Executions  which  can  not  be  levied  on  any  property. 

Executions  against  executors  and  administrators. 

Executions  against  a  defendant  who  is  dead. 

Receivers. 

Property  not  leviable  on  under  any  execution. 

Railroads  and  quasi-public  corporations. 

Choses  in  action. 

§  340.  Execution  against  principal  and  surety. 
§  341.  Duty  of  officer. 
§  342.  The  levy. 

Money. 

Partnership  property. 

Mortgaged  property. 

Shares  of  stock. 

Several  executions. 

§  343.  Payments  to  and  disbursements  by  officer. 
§  344.  Payment  by  officer  for  debtor. 
§  345.  Sale  of  property. 
§  346.  The  return. 

Amendment  of  return. 

Title  of  purchaser. 
§  347.  Delivery  bond. 
§  348.  Interpleader  proceedings. 
§  349.  The  lien  and  its  commencement. 


XXII  TABLE  OF  CONTENTS 

§  350.  Territorial  extent  of  lien. 

Tangible  property. 

Intangible  property. 
§  351.  Duration  of  lien. 

Tangible  property. 

Intangible  property. 
§  352.  Rights  of  purchaser. 

Tangible  property. 

Intangible  property. 
§  353.  Mode  of  enforcing  the  lien. 

Tangible  property. 

Intangible  property. 

Situs  of  debt  for  purpose  of  garnishment. 
§  354.  Property  undisclosed. 
§  355.  Non-resident  debtor. 
§  356.  Motion  to  quash. 
§  357.   Vcnditioni  exponas. 

CHAPTER  XLIII. 
ATTACHMENTS. 

§  358.  Nature  and  grounds. 

Non-resident  or  foreign  corporation. 

Removal  of  goods. 
§  359.  Courts  from  which  attachments  may  be  issued. 

Attachment  at  law. 

Attachment  in  equity. 

Attachment  from  a  justice. 

Attachment  where  no  suit  or  action  is  pending. 
§  360.  Proceedings  to  procure  attachment. 

In   equity. 

At  law. 

Attachment  where  no  suit  or  action'  is  pending. 

Attachment  for  twenty  dollars  or  less. 
§  361.  Affidavit. 

Sufficiency. 

Jurisdiction. 

Conjunctive    and    disjunctive    statements. 

Who  may  make  affidavit. 

Time  of  making  affidavit. 

Amendments. 

Additional  affidavits. 

Defective  affidavits. 
§  362.  What  may  be  attached. 
§  363.  What  may  not  be  attached. 


TABLE  OF  CONTENTS  XXIII 

§  364.  How  and  by  whom  property  is  attached. 

Tangible  personal  property. 

Choses  in  action. 

Real  property. 

By  whom  service  may  be  made. 
§  365.  Attachment  bonds. 
§  366.  Lien  of  attachment. 

Real   estate. 

Personal  property. 

Priorities. 

§  367.  When  attachment  to  issue. 
§  368.  Defences  to  attachments. 

Who  may  make  defence. 

What  defence  may  be  made. 

When   defence   may  be   made. 

How  defence  is  made. 

Defence  to  the  merits. 

Judgment  for  the  plaintiff. 

Order  of  publication. 

§  369.  Remedies  for  wrongful  attachments. 
§  370.  Holding  defendant  to  bail. 
§  371.  Appeal  and  error. 

CHAPTER  XLIV. 
WRITS  OF  ERROR. 

§  372.  Difference  between  writs  of  error  and  appeals. 

Appeals. 

Writs  of  error. 

Supersedeas. 

§  373.   Errors  to  be  corrected  in  trial  court. 
§  374.  Jurisdiction  of  the  Court  of  Appeals  of  Virginia. 

Original  jurisdiction. 

Appellate  jurisdiction. 

(1)  Matters  not  merely  pecuniary. 

(2)  Matters   pecuniary. 
§  375.  Amount  in   controversy. 

Virginia  doctrine. 

West  Virginia  doctrine. 

United  States  doctrine. 

General  doctrine. 

Change  in  jurisdictional  amount. 

Aggregate  of  several  claims. 
§  376.  Cross-error  by  defendant  in  error. 
§  377.  Collateral   effect. 
§  378.  Release  of  part  of  recovery. 


XXIV  TABLE  OF   CONTENTS 

§  379.  Reality  of  controversy. 

§  380.  Who  may  apply  for  a  writ  of  error. 

§  381.  Time  within  which  writ  must  be  applied  for. 

§  382.  Application  for  writ  of  error. 

The  record. 

The  petition. 

Notice  to  counsel. 
§  383.  Bond  of  plaintiff  in  error. 
§  384.  Rule  of  decision. 
§  385.  Judgment  of  appellate  court. 

Demurrer. 

Demurrer  to  the  evidence. 

Case  heard  by  trial  judge  without  a  jury. 

Jury  trial  in  lower  court. 

Divided  court. 
§  386.  Change  in  law. 

§  387.  How  decision  certified  and  enforced. 
§  388.  Finality  of  decision. 
§  389.  Rehearing. 

§  390.  Objections  not  made  in  trial  court. 
§  391.  Putting  a  party  upon  terms. 
§  392.  Appeals  of  right. 
§  393.  Refusal  or  dismissal  of  writ. 
§  394.  Conclusion. 

CHAPTER  XLV. 
EXTRAORDINARY  LEGAL  REMEDIES. 

§  395.  Mandamus. 
§  396. -Prohibition. 

Parties. 

Procedure. 
§  397.  Quo  Warranto. 

Procedure. 
§  398.  Certiorari. 

CHAPTER  XLVL 

HOMESTEADS  AND  EXEMPTIONS. 

§  399.  What  is  a  homestead. 

§  400.  History  of  Virginia  statute. 

§  401.  Constitutional  provisions. 

§  402.  Who  may  or  may  not  claim  the  homestead. 

For  whose  benefit. 

Nature  of  the  estate. 


TABLE   OF    CONTENTS  XXV 

§  403.  What  may  be  claimed. 

§  404.  How  and  when  to  be  claimed. 

§  405.  Effect  of  homestead  on  debts  or  claims  of  creditors. 

§  406.  Waiver  of  the  homestead. 

§  407.   Prior  liens. 

§  408.  Effect  of  will  of  householder. 

§  409.  Deed  of  trust  or  mortgage. 

§  410.  Power  over  homestead. 

§  411.  Income,  increase  and  betterments. 

§  412.  Excessive  homestead. 

§  413.  How  claims  superior  to  homestead  enforced. 

§  414.  Cessation  of  homestead. 

§  415.  Poor  debtors'  exemption. 

CHAPTER  XLVIL 

MECHANICS'  LIENS. 

§  416.  Origin  and  development  of  the  lien. 

§  417.  Who  may  take  out  the  lien. 

§  418.  Rights  of  assignee. 

§  419.  On  what  the  lien  may  be  taken  out. 

§  420.  How  lien  of  general  contractor  is  perfected. 

The  account. 

Description  of  the  property. 

When  claim  of  lien  to  be  filed. 
§  421.  Remedies  of  sub-contractor. 

Independent  lien. 

Personal  liability  of  the  owner. 

Benefit  of  general  contractor's  lien. 

§  422.  Protection  of  sub-contractor  against  assignments  and  garnish- 
ments. 

§  423.  Mechanics'  lien  record. 
§  424.   Conflicting  liens. 
§  425.   Enforcement  of  lien. 
§  426.  How  lien  may  be  waived  or  lost. 

CHAPTER  XLVIII. 
PRINCIPAL  RULES  OF  PLEADING. 

§  427.  Object  of  pleading — Principal   rules   of  pleading. 
§  428.  Materiality  of  Issue. 
§  428a.  Singleness  of  issue. 
§  429.  Certainty  of  issue. 


XXVI  TABLE  OF   CONTENTS 

CHAPTER  XLIX. 

RULES  WHICH  TEND  SIMPLY  TO  THE  PRODUCTION  OF  AN  ISSUE. 
§  430.  Introductory. 

RULE    I. 

§  431.  After  the  declaration,  the  parties  must  at  each  stage  demur,  or 
plead  by  way  of  traverse,  or  by  way  of  confession  and  avoid- 
ance. , 

§  432.  Pleadings. 

§  433.  The   general  issue. 

§  434.  Scope  of  general  issue  in  assumpsit. 

§  435.  Scope    of    general    issue    in    trespass    on    the    case. 

§  436.  Special  pleas. 

§  437.  Traverse  de  injuria. 

§  438.  Special  traverse. 

§  439.  Use    and    object    of    special    traverse. 

§  440.  Essentials  of  special   traverse. 

§  441.  Traverses   in   general. 

§  442.  Traverse  on  matter  of  law. 

§  443.  Matter  not  alleged  must  not  be  traversed. 

§  444.  Traversing  the  making  of  a  deed. 

§  445.  Pleadings   in   confession  and  avoidance. 

§  446.   Express  color. 

§  447.  The  nature  and  properties  of  pleadings  in  gen- 
eral— Without  reference  to  their  quality,  as  be- 
ing by  way  of  traverse,  or  confession  and 
avoidance. 

§  448.  Exceptions  to  the  rule. 

RULE   II. 

§  449.   Upon  a  traverse  issue  must  be  tendered. 

RULE  III. 
§  450.  Issue,  when  well  tendered,  must  be  accepted. 

CHAPTER  L. 
RULES  WHICH  TEND  TO  SECURE  THE  MATERIALITY  OF  THE  ISSUE. 

RULE  I. 
§  451.  All  pleadings  must  contain  matter  pertinent  and  material. 


TABLE  OF   CONTENTS  XXVII 

CHAPTER  LI. 

RULES  WHICH  TEND  TO  PRODUCE  SINGLENESS  OR  UNITY  IN  THE 

ISSUE. 

RULE   I. 

§  452.  Pleadings  must  not  be  double. 
§  453.  Several  demands. 
§  454.  Several  defendants. 
§  455.   Illustrations. 
§  456.  Several  counts. 
§  457.  Several  pleas. 
§  458.  Several  replications. 

RULE   II. 

§  459.  It  is  not  allowable  both  to  plead  and  to  demur  to  the  same  matter. 

CHAPTER  LII. 

RULES  WHICH  TEND  TO  PRODUCE;  CERTAINTY  OR  PARTICULARITY 

IN  THE  ISSUE. 

RULE  I. 
§  460.  The  pleadings  must  have  certainty  of  place. 

RULE   II. 

§  461.  Pleadings   must  have   certainty   of   time. 

RULE  III. 

§  462.   The  pleadings  must  specify  quality,  quantity,  and  value. 
§  463.  General   statements   of  quantity  and   quality. 
§  464.  Actions  to  which  rule  inapplicable. 
§  465.  Allegation  and  proof. 

RULE   IV. 

§  466.   The  pleadings  must  specify  the  names  of  persons. 
§  467.   Misnomer. 

RULE   V. 

§  468.  The  pleadings  mu'st  shoit'  title. 
§  469.  Derivation  of  title. 
§  470.  Particular  estates. 

§  471.  Additional   rules   on   derivation   of  title. 
§  472.   Plea  of  liberum  tcncmcntum. 
§  473.  Title  of  possession. 
§  474.  When    title    of  possession   is   applicable. 


XXVIII  TABLE   OF   CONTENTS 

§  475.  When   title   of  possession   is   sufficient. 

§  476.  Alleging  title  in  adversary. 

§  477.  Title    must    be    strictly   proved. 

§  478.   Estoppel  to  deny  title. 

RULE  vr. 
§  479.  The  pleadings  must  show  authority. 

RULE  VII. 

§  480.  In  general  whatever  is  alleged  in  pleading  must  be  alleged  with  cer- 
tainty. 

SUBORDINATE    RULES. 

§  481.  It  is  not  necessary  in  pleading  to  state  that  which 
is  merely  matter  of  evidence. 

§  482.  It  is  not  necessary  to  state  matter  of  which  the 
court  takes  notice  ex  officio. 

§  483.  It  is  not  necessary  to  state  matter  which  would 
come  more  properly  from  the  other  side. 

§  484.  It  is  not  necessary  to  allege  circumstances  neces- 
sarily implied. 

§  485.  It  is  not  necessary  to  allege  what  the  law  will  pre- 
sume. 

§  486.  A  general  mode  of  pleading  is  allowed  where  great 
prolixity  is  thereby  avoided. 

§  487.  A  general  mode  of  pleading  is  pften  sufficient,  where 
the  allegation  on  the  other  side  must  reduce 
the  matter  to  certainty. 

§"488.  No  greater  particularity  is  required  than  the  na- 
ture of  the  thing  pleaded  will  conveniently  admit. 

§  489.  Less  particularity  is  required  when  the  facts  lie 
more  in  the  knowledge  of  the  opposite  party 
than  of  the  party  pleading. 

§  490.  Less  particularity  is  necessary  in  the  statement  of 
matter  of  inducement  or  aggravation,  than  in 
the  main  allegations. 

§  491.  With  respect  to  acts  valid  at  common  law,  but  reg- 
ulated as  to  the  mode  of  performance  by  stat- 
ute, it  is  sufficient  to  use  such  certainty  of  alle- 
gation as  was  sufficient  before  the  statute. 

CHAPTER  LIU. 

RULES  WHICH  TEND  TO    PREVENT  OBSCURITY  AND   CONFUSION 

IN  PLEADING. 

RULE  I. 
§  492.  Pleadings  must  not  be  insensible  nor  repugnant. 


TABLE   OF    CONTENTS  XXIX 

RULE  II. 

§  493.  Pleadings    must  not   be   ambiguous,    or   doubtful  in  meaning;  and 
when  two  different  meanings  present  themselves,  that  construc- 
tion shall  be  adopted  which  is  most  unfavorable  to  the  party 
pleading. 
§  494.  Negative  pregnant. 

RULE  III. 
§  495.  Pleadings  must  not  be  argumentative. 

RULE  IV. 
§  496.  Pleadings  must  not  be  in  the  alternative. 

RULE  V. 

§  497.  Pleadings  must  not  be  by  way  of  recital,  but  must  be  positive  in 
their  form. 

RULE  VI. 

§  498.  Things  are  to  be  pleaded  according  to  their  legal  effect  or  operation. 

RULE  VII. 

§  499.  Pleadings  should  observe  the  known  and  ancient  forms  of  expres- 
sion, as  contained  in  approved  precedents. 

RULE  VIII. 

§  500.  Pleadings   should   have    their   proper   formal   commencements  and 

conclusions. 

§  501.  Variations   in   forms. 
§  502.  Improper   commencements   or   conclusions. 

RULE  IX. 

§  503.  A  pleading  which  is  bad  in  part  is  bad  altogether. 

CHAPTER  LIV. 

RULES   WHICH    TEND  TO   PRESENT   PROLIXITY   AND   DELAY  IN 

PLEADING. 

RULE   I. 

§  504.   Tlierc  must  be  no  departure   in  pleading. 

RULE   II. 

§  505.   Where  a  plea  amounts  to  the  general  issue,  is  should  be  so  pleaded. 


XXX  TABLE  OF   CONTENTS 

RULE  III. 
§  506.  Surplusage  is  to  be  avoided. 

CHAPTER  LV. 
CERTAIN  MISCELLANEOUS  RULES. 

RULE  I. 
§  507.  The  declaration  must  be  conformable  to  the  original  writ.' 

RULE  II. 

§  508.  The  declaration  should  have  its  proper  commencement,  and  should 
in  conclusion  lay  damages,  and  allege  production  of  suit. 

RULE   HI. 

§  509.  Pleas  must  be  pleaded  in  due  order. 

RULE  IV. 

§  510.  Pleas  in  abatement  must  give  the  plaintiff  a  better  writ  or  declara- 
tion. 

RULE  V. 

§  511.  Dilatory  pleas  must  be  pleaded  at  a  preliminary  stage  of  the  suit. 

RULE  VI. 

§  512.  All  affirmative   pleadings   which    do    not   conclude   to  the  country, 
must  conclude  with  a  verification. 

RULE  VII. 

§  513.  In   all  pleadings   where   a    deed   is  alleged,  under  which  the  party 
claims  or  justifies,  profert  of  such  deed  must  be  made. 

RULE   VIII. 

§  514.  All  pleadings  must  be  properly  entitled. 

RULE  IX. 

§  515.  All  pleadings  ought  to  be  true. 

CHAPTER  LVI. 

CONCLUSION. 

§  516.   Merits   of   system. 


Acts  of  1912 


After  the  first  four  hundred  and  twenty-four  pages  of  this 
book  were  printed,  the  legislature,  at  its  session  of  1912,  enacted 
the  following  statutes  affecting  subjects  treated  in  the  text: 

Acts  1912,  p.  15.  An  Act  giving  a  remedy  by  motion  for 
torts.  Thirty  days  notice  is  required,  and 
the  court  must  have  jurisdiction  "other- 
wise than  under"  §  3215  of  the  Code.  See 
§  99  of  the  text. 

Acts  1912,  p.  38.  Section  2920  of  the  Code  is  so  amended  as 
to  make  the  limitation  on  store  accounts 
three  years  instead  of  two,  as  formerly. 
This  changes  the  law  as  laid  down  in  § 
219,  page  387,  of  the  text. 

Acts  1912,  p.  133.  A  remedy,  by  petition  after  notice,  is  given 
for  the  ascertainment  and  designation  by 
the  court  of  "the  true  boundary  line  or 
lines  to  such  real  estate  as  to  one  or  more 
of  the  coterminous  landowners."  The 
Act  declares  who  shall  be  parties,  and 
provides  the  mode  of  procedure.  See 
Chapter  on  Ejectment. 

Acts  1912,  p.  651.  Section  3211  of  the  Code  is  so  amended  as 
to  allow  a  recovery  for  damages  founded 
upon  any  contract,  and  also  to  recover  any 
statutory  penalty.  This  changes  the  law  as 
laid  down  in  §  99  of  the  text. 


Constitutions  and  Codes  Cited 


[References  are  to  pages.] 


CONSTITUTION  OF  UNITED  STATES. 


Constitution,   U.    S.,   Art.   1,   §   6 293 

Constitution,   U.    S.,   Art.   4,   §    1 92,  93 

Constitution,    U.    S.,    Amendment    VII 475 

Constitution,   U.    S.,   Amendment    XIV .   312 


CONSTITUTION  OF  VIRGINIA. 


Constitution,   Va.,    (1869),   art.   XI,   §   3 801 

Constitution,  Va.,   (1902),   §   11 307,   312,  474,  475 

Constitution,    Va.,    (1902),    §    88 37,  48,  739,  741,  742,  743,  768 

Constitution,   Va.,    (1902),   §   98 38,   46,  737 

Constitution,    Va.,    (1902),    §    101 38 

Constitution,    Va.,    (1902),    §    106 291 

Constitution,    Va.,    (1902),    §    162 70 

Constitution,  Va.,   (1902),   §   190 789,  793,  795,   796,  807 

Constitution,   Va.,    (1902),   §   190,    (1) 787 

Constitution,    Va.,    (1902),    §    191 793 

Constitution,    Va.,    (1902),    §    192 792 

Constitution,    Va.,    (1902),    §    193 .787 


CODE   OF  VIRGINIA. 


1   Rev.   Code,    (1819),  p.   512,  §   104 548,  552 

1  Rev.   Code,    (1819),   ch.   133,  §   2,  p.    523 523 

2  Rev.    Code,    (1819),   pp.    194-5 768 

Code,    (1849),    ch.    130,    §    34 631 

Code,    (1849),   ch.    168,   §   5 166 

Code,    (1849),    ch.    186,    §    6 607 

Code,    (1849),    ch.    186,    §    8 609 


XXXIV  CODE  OF  VIRGINIA  CITED 
[References  are  to  pages.] 

Code,   (1873),   ch.   115,   §   6 829 

Code,    (1887),    §    2959 171 

Code,     (1887),    §    3224 295,  296 

Code,    (1887),    §    3255 307 

Code,    (1887),    §    3485 -. 768 

Code,    (1887),    §    3570 609 

CODE  1904 

Code,  §  5,  cl.   8 165,  322 

Code,   §  5,   cl.   10 698 

Code,   §   5,   cl.   13 302 

Code,    §    173 39 

Code,    §    174 692 

Code,    §    177 708 

Code,    §    181 708 

Code,  §  198 293,  294 

Code,    §   256 497 

Code,    §    257 493 

Code,    §    355 293 

Code,    §    575 89 

Code,    §    57G 89 

Code,    §    615 182 

Code,    §§    622-626 4 

Code,   §§   657,   658 543 

Code,    §§    681-685 182 

Code,   §   687 637 

Code,    §    712 89,  182 

Code,    §    713 89,  182 

Code,    §    714 „ 89,  182 

Code,    §    723 183 

Code,    §    746 629 

Code,    §§    863-865 182 

Code,    §    892 295,  672 

Code,  .§    893 295,  296 

Code,    §    895 • 295,  296 

Code,    §    898 294,  640 

Code,  §  900 9,  47,  182,  260,  295,  323 

Code,    §    901 ..    182 

Code,    §    904 640 

Code,    §   906 8,    11,  647 

Code,    §    907 9,  647 

Code,    §    909 : 183 

Code,    §§    910-912 183 

Code,    §    944a 37 

Code,    §    1044 4 


CODE  OF  VIRGINIA  CITED  XXXV 

[References  are  to  pages.] 

Code,    §    1103 311 

Code,    §    1104 317 

Code,    §    1137 381 

Code,    §    1292 91 

Code,    §    1294b,    cl.    20 41 

Code,    §    1294k 70 

Code,    §     1669 309 

Code,    §    1700 45 

Code,   §§  2038-2061,   ch.   93 809 

Code,    §    2042 4 

Code,    §    2048 3 

Code,    §    2233 400 

Code,    §    2286a 68,97 

Code,    §    2413 24 

Code,    §    2415 50,  109 

Code,    §    2428 642 

Code,    §    2455 15 

Code,    §    2460 386 

Code,    §    2468a 715 

Code,    §    2475..... 813,    816,    817,824 

Code,    §    2476 816,    817,    819,  826- 

Code,    §    2477 822,  824 

Code,    §    2478 819 

Code,    §    2479 822,  823 

Code,    §    2480 > 824 

Code,    §    2481 818,  831 

Code,    §    2482 824 

Code,    §    2482a,    cl.    1 825 

Code,    §    2482a,    cl.    2 825 

Code,    §    2483 817,  826 

Code,    §    2484 . 828 

Code,    §    2485 813,  826 

Code,    §    2486 826 

Code,    §    2487 814 

Code,    §    2495 47 

Code,    §    2498 453,  620 

Code,    §    2498a 620 

Code,    §    2501 39 

Code,    §    2533 45 

Code,    §    2539 45 

Code,    §    2542 45 

Code,    §    2544 482 

Code,    §    2599 45 

Code,    §    2602 45 

Code,    §    2639 45 

Code,    §    2639a 38 


XXXVI  CODE  OF  VIRGINIA  CITED 
[References  are  to  pages.] 

Code,    §    2649 '. 808 

Code,    §    2650 , 632 

Code,    §    2651 632 

Code,    §    2652 632 

Code,    §    2654 630 

Code,    §    2658 .' 631 

Code,    §    2659 631 

Code,    §   2660 34,    629,    631,    632 

Code,    §    2661 34,    631,  632 

Code,    §    2665 ; 34 

Code,    ch.    121,    §§    2671-2711 393 

Code,    §    2676 393,  41.1 

Code,    §    2677 72,  630 

Code,    §    2678 632 

Code,    §    2679 632 

Code,    §    2680 632 

Code,    §    2715 193 

Code,    §    2716 44,    47,    188,    189,  191 

Code,    §    2717 189,    408,  577 

Code,    §    2719 ._ 190 

Code,    §    2721 .* 190 

Code,    §    2723 195 

Code,    §    2724 201 

Code,    §    2725 195 

Code,    §    2726 195,  200 

Code,    §    2730 202 

Code,    §    2731 202 

Code,    §    2734a 205 

Code,    §    2736 195 

Code,    §    2737 207 

Code,    §    2738 208 

Code,    §    2739 207 

Code,    §    2741 189,  202 

Code,    §    2742 189,  202 

Code,    §    2743 189,  202 

Code,    §    2744 208 

Code,    §    2746 208 

Code,    §    2747 208 

Code,    §    2748 208 

Code,    §    2749 208 

Code,    §    2751 199 

Code,    §    2753 204 

Code,    8    2754 204 

Code,    §    2762 204 

Code,    §    2764 204 

Code,    ch.    127    §§    2781-2805 43 


CODE  OF  VIRGINIA  CITED  XXXVII 
[References  are  to  pages.] 

Code,  §    2785 5 

Code,  §    2787 ". 4,6 

Code,  §    2790 5,  6,  7,  39,  42 

Code,  §    2791 6,  11,  12,  13,  14 

Code,  §    2792 12,  13,  14 

Code,  §    2793 7 

Code,  §    2794 8 

Code,  §    2794a 6,9 

Code,  §    2795 10,47 

Code,  §    2841a 52 

Code,  §    2844a 322 

Code,  §    2852 82,  94,  144 

Code,  §    2853 52,  53,  83,  120 

Code,  §    2855 52,901 

Code,  §    2856 19,428 

Code,  §    2857 428 

Code,  §    2858 20,  428 

Code,  §    2860 ,    56,  109 

Code,  §    2876 64 

Code,  §    2887 390 

Code,  §    2890 390 

Code,  §    2891 390 

Code,  §    2893 183,  730 

Code,  §    2895. 183 

Code,  §    2897 249,  252,  348,  487,     949 

Code,  §    2898 728 

Code,  §    2899 210 

Code,  §    2900 90 

Code,  §    2901 226,  901 

Code,  §    2902 231 

Code,  §    2903 384 

Code,  §    2904 69 

Code,  §    2906 231 

Code,  §    2907 214,  224 

Code,  §    2912 213,  536 

Code,  §    2915 194 

Code,  §    2917 206,  394,  404 

Code,  §    2918 206 

Code,  §    2919 • 404,  630 

Code,  §    2920 387,  395,  404,  405 

Code,  §    2921 393 

Code,  §    2922 406 

Code,  §    2923 416 

Code,  §    2924 415 

Code,  §    2927 385,  395 


XXXVIII  CODE  OF  VIRGINIA  CITED 
[References  are  to  pages.] 

Code,  §    2928 399 

Code,  §    2929 386,  387 

Code,  §    2931 394,  395,  404 

Code,  §    2932 405 

Code,  §    2933 384,  399,  403,  405 

Code,  §    2934 401,402 

Code,  §    2935 397 

Code,  §    2936 379 

Code,  §    2937 381 

Code,  §    2938 398 

Code,  §    2939 10,  40,  44,  785 

Code,  §    2940 40 

Code,  §    2942 41 

Code,  §    2943 41 

Code,  §    2946 41 

Code,  §    2947 41,  46 

Code,  §    2948 41,  42 

Code,  §    2949 41,  42 

Code,  §    2950 41,  42 

Code,  §    2951 41 

Code,  §    2952 41,  183 

Code,  §    2953 41 

Code,  §    2955 41 

Code,  §    2955 41 

Code,  §    2956 41,  42,  46 

Code,  §    2957 42 

Code,  §    2959 171,  664,  676,  681,  682,  683,  690,  691,  695,  697,  716 

Code,  §    2961 39,  43,  678,  685,  689,  695 

Code,  §    2962 39,  43,  678,  685,  689,  695 

Code,  §    2963 679 

Code,  §    2964 679,  682,  695,  716 

Code,  §    2965 43,  685,  688,  707,  708,  721 

Code,  §    2966 698,  716 

Code,  §    2967 698,  699,  702,  704,  706,  707,  708 

Code,  §    2968... 708,709,728 

Code,  §    2970 321,  708 

Code,  §    2971 712 

Code,  §    2972 710 

Code,  §    2973 711 

Code,  §    2974 711 

Code,  §    2975 711 

Code,  §    2976 705 

Code,  §    2977 661,  662,  705 

Code,  §    2978 661,  705 

Code,  §    2979 727 


CODE;  OF  VIRGINIA  CITED 


xxxix 


[References  are  to  pages.] 

Code,  §    2980 717 

Code,  §    2981 718,  721,  724 

Code,  §    2982 726 

Code,  §    2983 712,  726,  727 

Code,  §    2984 710,  717,  718,  725 

Code,  §    2985 700 

Code,  §    2986 727,  731 

Code,  §    2988 43,  684,  685,  691,  695 

Code,  §    2990 708 

Code,  §    2991 43,  730 

Code,  §    2992 43,  669,  730 

Code,  §    2995 731 

Code,  §    2996 731 

Code,  §    2997 , 730 

Code,  §    2998 215 

Code,  §    2999 12,  47,  217,  218,  654 

Code,  §    3000 12,  217,  218,  219,  654 

Code,  §    3001 215,  217,  218,  645,  650,  653,  654 

Code,  §    3002 215,  216,  644 

Code,  §    3003 215,  650,  654 

Code,  §    3004 219 

Code,  §    3006 23,24 

Code,  §    3007 26 

Code,  §    3009 29 

Code,  §    3010 22,  23 

Code,  ch.    144,    §§    3011-3021 781 

Code,  ch.    144,   §   SOllff 777 

Code,  §    3016 778 

Code,  §    3017 778 

Code,  §    3018 781 

Code,  §    3022 781. 

Code,  ch.   145,   §§   3022-3028 784 

Code,  §    3024 783 

Code,  §    3046 47 

Code,  §    3054 182 

Code,  §    3055 46,  47 

Code,  §    3058 44,  45,  46 

Code,  §    3058b 47 

Code,  §    3062 -. 182 

Code,  §    3067a 47 

Code,  §    3124 167 

Code,  §    3138 45 

Code,  §    3139 470 

Code,  §    3140 , 470 

Code,  §  3140a...                                                                                              .   470 


XL  CODE  OF  VIRGINIA  CITED 
[References  are  to  pages.] 

Code,  §    3141 470 

Code,  §    3154 471,  472,  473 

Code,  §    3155 472 

Code,  §    3156 472 

Code,  §    3158 473 

Code,  §    3165 471 

Code,  §    3166 475 

Code,  §    3167 588 

Code,  §    3200 183,  393 

Code,  §   3207 162,   295,   296,   298,   312 

Code,  §    3209 184 

Code,  §    3210 9,  47,  78,  183,  292 

Code,  §   3211 46,   56,   78,   159,   163,   164,   165,   166,   167, 

168,  171,  172,  174,  175,  181,  182,  183,  292,  357,  401,  445,  610,  716,  854 

Code,  §    3212 52,  53,  54,  180,  181,  901 

Code,  §    3213 9,  181,  475 

Code,  §    3214 163,  281,  282,  284,  293,  317,  318,  917 

Code,  §    3214,  cl.  4 281 

Code,  §    3214,  cl.  5 284 

Code,  §    3214,  cl.  6 285 

Code,  §    3214,  cl.  7 285 

Code,  §    3215 163,  272,  282,  284,  285,  295,  311,  317,  322,  327,  917 

Code,  §  3220 260,  272,  282,  297,  312,  317,  322,   627,  637,  917 

Code,  §    3221 260,  290 

Code,  §    3223 292 

Code,  §    3224 162,  283,  298,  312 

Code,  §    3225.  .• 283,  310 

Code,  §    3226 309 

Code,  §    3227 284,  310,  311,  312,  316,  322,  323,  324,  326 

Code,  §    3231 321 

Code,  §    3232 296,  304 

Code,  §    3236 256,  258,  259 

Code,  §    3237 256 

Code,  §    3238 256,274 

Code,  §    3239 257 

Code,  §    3240 256,  260 

Code,  §    3241 257 

Code,  §    3242 257,  919 

Code,  §    3243 287,  340,  916 

Code,  §    3244 287,  340,  581,  1005 

Code,  §    3245 287,  340,  360,  976,  977,   1012,   1018 

Code,  §    3246 141,  340,  345,  360,  976,977,  1012,   1018 

Code,  §    3246a 83,  115,  119,  120,  157 

Code,  §    3247 , 340,  360 


CODE  OF  VIRGINIA  CITED  XL) 

[References  are  to  pages.] 

Code,    §    3248 148,  149 

Code,    §    3249 9,  100, 

148,  157,  178,  179,  445,  456,  599,  600,  854,  924,  1016,  1018 

Code,    §    3250 99 

Code,    §    3251 956 

Code,    §    3253 1013 

Code,    §    3255 66,  67,  270,  307 

Code,    §    3258 257,  270,  583,  926,  1013 

Code,    §    3258a 76,  257,  345,  1013 

Code,  §   3259 180,  257,  270,  291,  349,  583,  998,  1013 

Code,    §    3260 180,258,273 

Code,    §    3261 54,  258,  271 

Code,    §    3263 75,    1014 

Code,    §    3264 279,  332,  339,  342,  343,  361,  909,  1000,   1015 

Code,    §    3265 978,  981 

Code,    §    3266 875 

Code,    §    3267 865 

Code,    §    3268 356 

Code,    §    3269 977,  978 

Code,    §    3270 909 

Code,    §    3271 -. 341 

Code,    §    3272 141,  269,  334,  340,  359,  975,  976,  977,  1012,  1018 

Code,    §    3278 99,    101,    176,    269 

Code,    §    3279 99,   114,   162,  176,  269,  332 

Code,    §    3280 99,  176,  269 

Code,    §    3283 261,  262,  292,  608,  610 

Code,    §    3285 150,263,264 

Code,    §    3286 100,  150,  263,  264,  269,  741 

Code,    §    3287 95,  263,  275,  277,  619 

Code,    §    3288 263,  276,  277 

Code,    §    3259 272 

Code,    §    3293 274,  598,  608 

Code,    §    3294 185 

Code,    §    3295 433 

Code,    §    3296 245,  373 

Code,    §    3297 245,  373 

Code,    §    3298 97,  432,  435,  437,  440,  443,  444,  459 

Code,  §  3299...    101,  102,  117,  171,  175,  177,  178,  269,  338,  357,  406, 

408,   448,   450,   451,   452,   453,   454,   455,   456,   457,   458,   459,   854 

Code,    §    3300 357,  408,  448,  450,  454 

Code,    §    3301 448 

Code,   §   3302 433,  435,  448,  874 

Code,    §    3303 436,  440,  441,  443,  597 

Code,    §    3304 436,  441,  442,  443,  448,  449 


XLII  CODE  OP  VIRGINIA  CITED 
[References  are  to  pages.] 

Code,  §    3305 73 

Code,  §    3308 73,  463 

Code,  §    3309 73 

Code,  §    3311 74 

Code,  §    3316 917 

Code,  §    3317 917 

Code,  §    3328 948 

Code,  §    3336 266 

Code,  §    3354 464 

Code,  §    3365 465 

Code,  §    3375 254,  255 

Code,  §    3376 527 

Code,  §    3377a 95,  593 

Code,  §    3378 166,  167,  258,  577 

Code,  §    3380 468 

Code,  §    3384 170,  467,  493,  585,   586,  587,  1014 

Code,  §    3385 519,  523 

Code,  §    3385a 518,  559,  764 

Code,  §    3387 597 

Code,  §    3388 476 

Code,  §    3389 • 548,  555,  766 

Code,  §    3390 95,  546 

Code,  §    3392 545,  558,  569,  763 

Code,  §    3393 95 

Code,  §    3394 95,  265,  583,  956 

Code,  §    3395 54,  75,  181 

Code,  §    3396 53,    54,  181 

Code,  §    3402a , 306 

Code,  §    3415a • 61,  633 

Code,  §    3419 45 

Code,  §    3447 737 

Code,  §    3448 737 

Code,  §    3449 355,  356.  363.  571,  737,  969 

Code,  §   3451 535,   541,  738 

Code,  §    3452 738,  773 

Code,  §    3454 48,    740,    742,  744 

Code,  §    3455 48,  740,  742,  756 

Code,  §    3457 758,  759 

Code,  §    3460 758 

Code,  §§    3464-5-6 758 

Code,  §    3470 758,  760 

Code,  §    3474 756 

Code,  §    3484 497,   566,   603,   761,  763 

Code,  §    3484a 517 

Code,  §    3485 .   735,  768 


CODE  OF  VIRGINIA   CITED 
[References  are  to  pages.] 

Code,  §    3488 769 

Code,  §    3490 769 

Code,  §    3492 770 

Code,  §    3495 760 

Code,  §    3518 4 

Code,  §    3519 183 

Code,  §    3538 594 

Code,  ch.   173,   §§  3538-3556 594 

Code,  §    3539 594 

Code,  §    3541 469 

Code,  §    3542 569 

Code,  §    3543 594 

Code,  §    3544 '. 594 

Code,  §    3545 594 

Code,  §    3549 464 

Code,  §    3557 604 

Code,  §    3558 604 

Code,  §    3559a 618 

Code,  §    3561 612 

Code,  §    3562 620 

Code,  §    3563 620 

Code,  §    3564 620 

Code,  §    3565 613 

Code,  §    3566 699,712 

Code,  §    3567 606,  607,  608,  610 

Code,  §    3568 607,  611 

Code,  §    3570 609,  612 

Code,  §    3571 622 

Code,  §    3572 623 

Code,  §    3573 '. 389,  623 

Code,  §    3574 616,  620 

Code,  §    3575 620 

Code,  §    3576 610,  615,  616 

Code,  §    3577 405,  612,  627,  648,  659 

Code,  §    3580 615 

Code,  §    3581 625 

Code,  §    3583 669 

Code,  §    3584 214 

Code,  §    3585 214 

Code,  §    3587 626,  627,  655,  656 

Code,  §    3588 641 

Code,  §    3589 627,  636 

Code,  §    3590 645 

Code,  §    3591 636,  637,  648 

Code.  §    3593 . .  672 


XUV  CODE  OF  VIRGINIA  CITED 
[References  are  to  pages.] 

Code,  §    3594 672 

Code,  §    3596 646 

Code,  §    3598 654 

Code,  §    3599 670 

Code,  §    3600 626 

Code,  §    3601 428,  638,  656,  660,  699 

Code,  ch.    176,    §§    3601-3616 669 

Code,  §    3602 659 

Code,  §    3603 665,  668 

Code,  §    3604 662,  667 

Code,  §    3606 668 

Code,  §    3608 668 

Code,  §    3609 ." 44,  297,  661,  662,  664 

Code,  §    3610. 662 

Code,  §    3611 661 

Code,  §    3617 9,  650 

Code,  §    3618 10,  43 

Code,  §    3619 9,  47,  652 

Code,  §    3620 183 

Code,  §    3621 9,42 

Code,  §    3624 653 

Code,  §  '  3625 10,  43,  183 

Code,  §    3626 615 

Code,  §    3629 794 

Code,  §    3630 793,  796,  797,  805 

Code,  ch.    178,    §§    3630-3657 655 

Code,  §    3631 793,  794 

Code,  §    3632 793 

Code,  §    3633 793 

Code,  §    3634 803 

Code,  §    3635 802 

Code,  §    3636 795,  801 

Code,  §    3637 802 

Code,  §    3640 795,  801,  802 

Code,  §    3642 795 

Code,  §    3643 803 

Code,  §    3644 804 

Code,  §    3647 797,  799,  820 

Code,  §    3648 805 

Code,  §    3649 608,  615,  805 

Code,  §    3649a 801 

Code.  §    3650 12,  633,  799,  807,  808,  809,  810 

Code,  §    3651 12,  633,  799,  807,  808,  809,  810 

Code,  §  3652 44,  633,   663,  799,   807,  810 

Code,  §    3652a .    89,664,809 


CODE  OF  WEST  VIRGINIA   CITED  XLV 
[References  are  to  pages.] 

Code,  §    3652b 809 

Code,  §    3652c • 809 

Code,  §    3652d 706 

Code,  §    3652e 706 

Code,  §    3652f 706 

Code,  §    3653 808 

Code,  §    3654 809 

Code,  §    3655 12,  809 

Code,  §    3656 810 

Code,  §    3657 • 796,  807 

Code,  §    3677 389 

Code,  §    3712 639 

Code,  §    3958 347 

Code,  §    4115 , 72,294 

Code,  §    4116 72 

Code,  §    4121 294 

Code,  §    4026 478 

Code,  §    4029a 479 

Code,  §    4045 550,  553 

Code,  §    4058 335 

3    Code,    p.    544 462 


CODE   OF  WEST  VIRGINIA. 


Code,   W.  Va.,  (1899),  ch.    125,   §   11 149 

Code,   W.  Va.,  (1899),  ch.   125,   §  21 361 

Code,    W.  Va.,  (1906),  §    1976 65 

Code,    W.  Va.,  (1906),  §    3485 487 

Code,   W.  Va.,  (1906),  §    3503.... 415 

Code,    W.  Va.,  (1906),  §    3511 385 

Code,   W.  Va.,  (1906),  §   3541 710 

Code,    W.  Va.,  (1906),  §    3833 308 

Code,    W.  Va.,  (1906),  §    3834 926 

Code,    W.  Va.,  (1906),  §   5835 998 

Code,    W.  Va.,  (1906),  §    3840 333,  342,  344,  908,  909 

Code,   W.  Va.,  (1906),  §   3841 , 279 

Code.   W.  Va.,  (1906),  §   3849 335 

Code,    W.  Va.,  (1906),  §    3852 919 

Code,    W.  Va.,  (1906),  §   3853 581 

Code,    W.  Va..  (1906),  §   3876 1020 

Code,    W.  Va..  (1906).  §    3890 432 

Code,   W.  Va.,  (1906),  §   3922 948 

Code.   W.  Va..  (1906),  §    3969 924 


XLVI 


CODE  OF   WEST   VIRGINIA    CITED 


[References  are  to  pages.] 

Code,  W.    Va.,  (1906),  §    3976 465. 

Code,  W.    Va.,  (1906),  §    3979 496,  568 

Code,  W.    Va.,  (1906),  §    3980 527,  528 

Code,  W.    Va.,  (1906),  §    3982 476 

Code,  W.    Va.,  (1906),  §   3985 569 

Code,  W.   Va.,  (1906),  §   4037 733,  738 

Code,  W.    Va.,  (1906),  §    4038 542,  744 

Code,  W.    Va.,  (1906),  §    4058 769 

Code,  W.    Va.,  (1906),  §    4059 335 

Code,  W.    Va.,  (1906),  §    4125 * 595 

Code,  W.    Va.,  (1906),  §    4128 569 

Code,  W.    Va.,  (1906),  §   4150 .  627 


Cases  C  ited 


[References  are  to  pages.] 


Abbot    v.    Chapman 851 

Abell  v.    Penn.   Ins.   Co 338,  403 

Abney  v.  Ohio  L.  R.  Co.  ..267,  290 
Ackiss   v.    Satchell, 

612,    615,    658,    807 

Acknei    v.   Railroad   Co.. 760 

Adams  v.   Jennings 779-780 

Adams  v.  Lawson 255 

Adamson   v.    Norfolk   Co.. 537,  565 

Adkins    v.    Fry 484 

Adkins  v.  Richmond.  .348,  743,  771 

Adkins    v.    Stephens 484 

Aglionby    v.    Towersom 953 

Ailstock  v.   Moore  Lime   Co..    240 
Aldneb    v.    Anchal     Coal     Co. 

(Oregon)     319 

Alexander   v.    Slavis 308 

Alleghany    Iron  Co.  v.  Teaford.  529 

Allen   v.    Bartlett 5 

Allen    v.    Clark 797 

Allen  v.   Hart 9,  224,  432,  441 

Alley   v.    Rogers 621 

Allis    v.     Billings 102 

Allison  v.  The  Farmer's  Bank 

of    Virginia 96 

Allison  v.   Wood 751,   756,   769 

Alrmeyer   v.    Caulfield 692 

Alsope   v.    Sytwell 963 

Alvis  v.    Saunders 615 

Amis  v.    Roger 166,    184 

American  Bonding  Co.  v.  Mil- 
stead    115,  117,   145,   155 

Amer.    L.    Co.   v.    Hoffman....    759 
Amer.  L.  Co.  v.  Whitlock, 

504,    505,    506 

Amer.    Manganese    Co.    v.    Va. 
Manganese    Co 449 


Amy  v.   Dubuque 383,  396 

Amy    v.    Watertown 310,    405 

Anderson  v.  Com 522,  524 

Anderson  v.  Desoer..698,  699,  713 

Anderson   v.    Henry 13 

Anderson  v.  Hygeia  Hotel  Co., 

384,    769 
Anderson  v.  Johnson, 

712,  722,  725,  727,  732 
Anderson     v.     Kanawha     Coal 

Co 134,    697 

Andrews    v.    Fitzpatrick 296 

Andrews    v.    Mundy 679 

Anniston  Electric  Co.  v.  Rosen  893 

Anthony    v.    Kasey 306 

App  v.  App 950 

Archer  v.  Archer 113,  115,  957 

Armentrout    v.    Gibbons 442 

Arminius      Chemical      Co.      v. 

White     297 

Armstrong  v.   Taylor 28,   781 

Arnold  v.   Cole 113,   114 

Arnold  v.   Kelly 247 

Arthur   v.    Ingles 212 

Ashby  v.   Bell 411 

Atlantic  Coast  Line  v.   Bryan.  380 
Atlantic   &  D.   R.   Co.   v.   Rei- 

ger     471,    759 

Atl.,   etc.,   R.   Co.  v.   Laird 396 

Atlantic  &  Tel.  Co.  v.  Phila..     70 
Att'y-General   v.    Meller, 

937,   939,   962 

Attwood  v.   Davis 984 

Auburn   &   O.   Co.  v.   Leitch..   354 

Aultman  v.    Gay 541,   773 

Aurora    City    v.    West 451 

Austin   v.   Jones, 

31,   98,   211,   212,   247,   537,   580 


XLVIII 


CASES  CITED 


[References  are  to  pages.] 


Austin  v.  Richardson 146 

Austin  v.   Whitlock Ill,   114 

Ayers    v.    Richmond,    etc.,    R. 

Co 491 

Aylesbury    v.    Harvey 1003 

Aylett  v.   Robinson.  .  .413,  414,  420 

Aylett  v.  Walker 65 

Backus    v.    Taylor 110 

Baer  v.  Ingram.  .612,  659,  670,  671 

Bailey   v.    Clay 355 

Bailey   v.    Glover 386 

Bailey    v.    Hull 831 

Bailey    v.    McCormick 595 

Bailey     Construction     Co.     v. 

Purcell    829 

Bainbridge  v.  Day 987 

Baird   v.    Peter 95 

Baker    v.    Blackman 888 

Baker  v.  Dewey 870 

Baker    v.    Morris 96 

Baker  v.   Swineford.  ...'..  .276,   626 

Baker   v.    Watts 774 

Ballard    v.    Whitlock 671 

Ballou   v.    Ballou 393 

B.  &  O.  R.  Co.  v.  Bank 131 

B.  &  O.  R.  Co.  v.  Burke 130 

B.  &  O.  R.  Co.  v.  Few 504 

B.   &  O.  R.  Co.  v.  Gallahue..   663 

B.   &  O.  v.  McCullough 698 

B.   &  O.  v.   Polly 133,  158, 

330,    509,    538,    539,    540,    588,    993 
B.   &  O.  R.  Co.  v.  Wightman, 

69,  464 
Bait,  Dental  Ass'n  v.  Fuller..       6 

Banfill  v.   Leigh 1004 

Bank    v.    Allen 540 

Bank   v.    Berkeley 518 

Bank   v.    Byrum 680 

Bank    v.    Kimberlands 433 

Bank   v.    Napier 774 

Bank   v.    Otterview    Land    Co.  383 

Bank   v.    Parsons 460 

Bank  v.   Pratt 953 

Bank    v.    Showacre 525 

Bank  of  Huntington  v.  Napier.  568 


Bank  of  Old  Dom.  v.  Allen..  616 

Bank  of  the  U.  S.  v.  Jackson.  142 
Bankers'    Loan    &   Investment 

Co.  v.   Blair 613 

Bannister    v.    Coal    and    Coke 

Co ' 128,    133,    143,  156 

Barbee    v.    Pannell 732 

Bardwell    v.    Collins 314 

Barker   v.    Lade 974 

Barksdale    v.    Fitzgerald 616 

Barksdale  v.   Neal 326 

Barnes    v.    Crockett's    Arm'r..  107 

Barnes    Case 759,  770 

Barrett  v.  Coal  Co 491,  496,  497 

Barrett    v.    Armstrong 129 

Barrett   v.    Hinckley 196 

Barrett    v.     Raleigh     Coal     & 

Coke    Co 137 

Bartlett   v.    McKinney, 

190,    356,  358 

Bass  v.   Norfolk  Ry.  Co 495 

Bassett  v.   Cunningham 26,  28 

Batchelder    v.    Richardson, 

746,  750 

Bateman   v.    Allen 932 

Batt    v.     Bradley 878 

Battershall   v.   Roberts 513,  520 

Bauserman    v.    Blunt 398 

Beak    v.    Tyrell 945 

Beal    v.    Simpson 867 

Beale  v.  Botetourt  Justices...  628 

Beale   v.    Hall 130 

Beantz    v.    Basnett 429 

Beard    v.    Arbuckle 646 

Bear  Lake   City  v.   Budge 314 

Beavers    v.    Putnam 231 

Beazley    v.    Sims 53 

Beirne    v.    Rosser 271,    281,774 

Beirne    v.    Dunlap 84,  88 

Bell    v.    Crawford 413,    415,  420 

Bell  v.  Morrison..  378,  413,  415,  420 

Bellamy's    Case 1004 

Bellenot   v.    Richmond 381 

Bemiss  v.   Com 760,  896 

Benn    v.    Hatcher..                    .  538 


CASES   CITED 


XUX 


[References 

Bennett    v.    Filkins 858 

Bennett  v.  Finney 442 

Bennett    v.    Perkins 486 

Bentley    v.    Standard    F.    Ins. 

Co 402 

.Benton    v.    Com 462 

Bertha  Zinc  Co.  v.  Martin 502 

Bertie    v.    Pickering 922 

Beverley  v.   Holmes 144 

Bias   v.    Vickers 456 

Bickle  v.   Crisman 378,  386,  663 

Bierly   v.    Williams 31 

Birch    v.    Bellamy 964 

Birch    v.    King 353 

Birch   v.   Wilson 992,  994 

Birckhead   v.    Ches.    &    O.    R. 

Co 364 

Bird   v.    Randall 853 

Birmingham  v.  C.  &  O.  R.  Co., 

59,  395 

Bishop    v.    Harrison 416 

Bishop  of  Salisbury's  Case...  963 

Bisse   v.    Harcourt 980,  983 

Black  v.   Thomas 535,  538 

Black     v.     Va.     Portland    Ce- 
ment   Co 557 

Blackborough  v.   Davis 930 

Blackwell    r.    Bragg 395 

Blackwell    v.    Landreth 545 

Blackwood  Coal  Co.  v.  James, 

346,  521 

Blagge   v.    Ilsley 229 

Elaine  v.  Ches.  &  O.  R.  Co...  3 

Blair   v.    Carter 369,  411 

Blair   v.    Wilson 134,  428 

Blake    v.    Foster 859 

Blake  v.   McCleng 315 

Blake   v.    McCray 189 

Blakemore    v.    Wise 616 

Blanks   v.    Robinson 236 

Blanton   v.    Com 170,  177 

Bledsoe  z:    Robinett 360 

Bleeke    v.     Grove .  , 895,  896 

Blockley   v.    Slater 929 

Blose  v.   Bear 791 

'  — d 


are  to  pages.] 

Bloss  v.   Plymale 18 

A.   D.   Blowers  &  Co.  v.  Can. 

Pac.    R.    Co 243 

Blue    Ridge    L.    &    P.    Co.    v. 

Tutwiler    514 

Blunt's    Case 500 

Boffinger  v.  Tuyes 17 

Boggs   v.    Newton 211 

Bohn  v.   Zeigler 692 

Boisseau   v.    Bass 635,  702 

Boiling   v.    Kirby 241 

Bond   v.    Dustin 554 

Bonner    v.    Wilkinson 870 

Bonsack  v.  Roanoke  County..    575 

Booker    v.    Donohoe 122,  148 

Booth    v.    Dotson 51,  755 

Borst  v.  Nalle 605 

Boston,  etc.,  Co.  v.  Ches.  &  O. 

R.    Co 814,  816,  821 

Boston  R.  Co.  v.  McDuffey...      69 

Botton  v.   Cannon 908 

Botts   v.    Pollard 258,  261 

Bower    v.    Cook 977 

Bowers    v.    Bristol 490,491 

Bowditch  v.    Mawley 926 

Bowie    v.    Poor    Society 397 

Bowler  v.    Huston, 

65,    103,    293,    306 

Bowles    v.    Brauer 322 

Bowles   v.    Elmore 405,  422 

Bowman    v.    Bowman 888 

Bowyer's    Case 914 

Boyce  v.   Whitaker 948 

Boyden  v.  Fitchburg  R.  Co...   947 

Boyles   v.    Overby 359,    574 

Boynton  v.  Ball 369 

Braban  v.   Bacon 953 

Bradshaw  v.  Ashley 198 

Bradshaw's,  Robert,  Case.. 962,  963 

Brady  v.   Johnson 634 

Brammer  v.  N.  &  W.  R.  Co...   384 

Braxton    r.    Harrison 416 

Breeden  v.  Peale 171,  716 

Bret  v.  Audar 958 

Brewer   r.    Hutton 629,701 


CASES   CITED 


[References  are  to  pages.] 


Bridges  v.   Stephens 420 

Briggs   v.    Barnett 130 

Briggs   v.    Cook, 

175,   177,   190,  357,  358 

Briggs  v.   Hall 15,  492,  495 

Bright  Hope  R.  Co.  v.  Rogers.  510 

Brindley  v.   Dennett 996 

Brinsmead   v.    Harrison 19,   56 

Bristol    Iron    &    Steel    Co.    v. 

Thomas    814 

Bristow  v.  Wright 995,  996 

Britton   v.    Williams 23 

Broaddus  v.  Supervisors 775 

Brockenbrough     v.      Brocken- 

brough    292,  833 

Brooke  v.  Gordon 95 

Brooklyn  v.   Life  Ins.   Co 319 

Brooks    v.    Metropolitan    Life 

Ins.    Co 338 

Brooks  v.   Scott 133,  141,  142 

Brown   v.    Butler 402 

Brown  v.   Campbell 658 

Brown   v.    Com 507 

Brown  v.  Cornwall 819 

Brown  v.   Ferguson 532,  576 

Brown  v.   Gates '. 633 

Brown    v.    Gorsuch 723 

Brown   v.    Howard 755 

Brown  v.  Hume 611 

Brown   v.    111.    Cent.    R.    Co...  973 
Brown    v.    Norfolk    &    W.    R. 

Co 252,   349,  487 

Brown   v.    Ralston 133,  532 

Brown  v.   Smith 924,  999 

Brown  v.  Western  State  Hos- 
pital       67 

Bruce  v.  Berg 820 

Brudnell  v.   Roberts 857 

Brunswick     Terminal     Co.     v. 

National    Bank 399 

Buck  v.   Guarantors   Co 701 

Buckley   v.    Rice   Thomas, 

926,  961,  976 

Buena  Vista  Co.  v.  Hickman..  525 


Buena    Vista    Co.   v.    McCand- 

lish    132,   138,   541,   542,   772 

Buford   v.    Houtz 3 

Buford      v.      North      Roanoke 

Land   Co 756 

Bugg  v.  Seay 199,  511 

Bull  v.  Com 517,  559 

Bull  v.    Evans 424,  756 

Bullitt  v.   Winston 638,   648 

Bullock  v.   Sebrell 108 

Bumgardner  v.   Harris. ..  .385,  387 
Bunch    v.    Fluvanna    County, 

175,  176 

Bunting  v.  Cochran 438,  747 

Buntin  v.  Danville 477,  540,  560 

Burke    v.    Lee 508 

Burkhart  v.  Jennings 720 

Burks'   Exrs.  v.  Treggs'   Exrs.  104 

Burlow    v.    Quarrier 326 

Burroughs   v.   Taylor 779 

Burton   v.    Mill 797 

Burton  v.   Stevens 420 

Burton  v.  Webb 955 

Burwell  v.  Burgess 150 

Bush   v.   Beall 631 

Bush  v.  Campbell 75,  102 

Busters'  Exr.  v.  Wallace.  .110,  111 

Butcher  v.   Carlile 85,  88,     96 

Butcher   v.    Hixton 142 

Butcher   v.    Kunst 619 

Butler   v.    Parks 213 

Butterworth  v.  Ellis 134 

Butt's    Case 966,  967 

Byars  v.   Thompson 28 

Cable  v.  U.  S.  Life  Ins.  Co...   315 
Camden     Clay     Co.     v.     New 

Martinsville    344 

Cahoon  v.   McCulloch, 

53,  54,  168,  181,  590,  596 
Calhoun  v.  Williams.  .789,  793,  806 

Callaway  v.    Harding 756 

Callaway  v.   Price 429 

Callaway   v.    Saunders, 

406,    410,    414,    620 
Callis  v.  Kemp 207 


CASES  CITED 


[References  are  to  pages.] 


Callis    v.    Waddey 384 

Wm.    Cameron    Co.    v.    Camp- 
bell        374 

Cammack  v.   Soran 713 

Campbell  v.   Campbell 770 

Campbell  v.  Smith 745,  753 

Campbell   v.    Holt 379,   380,   408 

Canal    Co.   v.    Ray 17 

Cann    v.    Cann 381,414 

Capehart  v.  Cunningham, 

300,  301,  728 

Cardwell  v.  Talbott 92,  94,   172 

Carlin  &  Co.  v.   Fraser 504 

Carlisle   v.   Trears 920 

Carpenter  v.  Sibley  (Cal.) 235 

Carmack  v.    Grundy 996 

Carr  v.  Bates 281,  318 

Carr  v.  Hinchliff 994 

Carr   v.    Mead 169 

Carrick    v.    Blagrave 866,891 

Carrico  v.  W.  Va.  Ry.  Co 482 

Carter  v.  Cooper 599 

Carter   v.    Grant 15 

Carter   v.    Keeton 817,  831 

Carter  v.   Wharton 467 

Carter   v.    Wood 197,601 

Cartin  v.  South  Bound  R.  Co.  598 

Carver   v.    Pinkney 1004 

Case  v.   Barber 965 

Case    v.    Sweeney 438,748 

Cash   v.    Humphreys 744 

Casseres  v.   Bell 952 

Gates    v.    Allen 387 

Cauthorn  v.   Courtney 28 

Cecil  v.   Early 175 

Cecil  v.    Henderson 420 

Cecil  t-.  Hicks 546 

Cella  Commission  Co.  v.  Boh- 

linger    320 

Central     Land     Co.    v.     Oben- 

chain    518,  570 

Chamberlain    v.    Greenfield, 

923,   963 

Chandler  v.  Roberts 971 

Chandler  v.  Spear 228 


Chapman  v.   Chapman 394 

Chapman  v.   Comth 431 

Chapman  v.  Pickersgill 953 

Chapman  v.  Va.  R.  E.  Co 764 

Charlottesville  v.    Failes 472 

Charlottesville  R.  Co.  v.   Rubin.  768 

Charlottesville  v.   Stratton 755 

Charron   v.    Boswell 658 

Chase  v.   Miller 274 

Cheatham  v.   Aistrop 403 

Ches.    &    Nashville    R.    Co.    v. 

Speakman    417-418 

Ches.    &   O.    R.    Co.   v.   Amer. 

Exch.   Bank 285,  333,  343,  344 

Ches.   &  O.   R.   Co.  v.  Ander- 
son      351,  490 

Ches.  &  O.  R.  Co.  v.  Bank..  908 
C.  &  O.  Ry.  Co.  v.  Barger....  919 
Ches.  &  O.  R.  Co.  v.  Ghee..  69 
Ches.  &  O.  R.  Co.  v.  Harris..  543 
C.  &  O.  Ry.  Co.  v.  Hoffman, 

495,  600,  947 

Ches.  &  O.  R.  Co.  v.  Matthews.  947 
C.  &  O.  R.  Co.  v.  Melton.. 554,  766 
Ches.  &  O.  R.  Co.  v.  Pierce, 

481,  495 
Ches.  &  O.  R.  Co.  v.  Paine  & 

Co 644,  699,  713 

C.    &.    O.    v.    Rison, 

158,    331,    335,    343,    350,    352, 

353,  366,  894 
Ches.  &  O.  R.  Co.  v.  Rowsey..529 

C.   &  O.   R.   Co.  v.  Scott 776 

Ches.  &  O.  Ry.  Co.  v.  Smith..  471 
Ches.  &  O.  Ry.  Co.  v.  Spar- 
row    481 

Ches.  &  O.  R.  Co.  v.  Stock, 

142,  144,  155,  500,  505 
Ches.  &  O.  R.  Co.  v.  Wills./ 364 
Ches.  &  O.  R.  Co.  v.  Wills..  766 
Chestnut  v.  Chestnut.  .99,  100,  338 

Chewning   v.    Wilkinson 113 

Chews  v.  Driver 563 

Chicago,   etc.,   R.    Co.   v.   Wal- 
cott    .  .    955 


CASES  CITED 


[References  are  to  pages.] 


Childers  v.   Dean 486 

Childress  v.  Jordan 441 

Childs  v.  Wescott 932 

Church    v.     Brownwick, 

953,   954,    956 

Cirode    v.    Buchanan 715 

Citizens'  Bank  v.  Taylor, 

495,  544,  762,  764 
Cily  of  Charleston  v.  Seller..  779 
City  Gas  Co.  of  Norfolk  v. 

Poudre    600 

City    of    Richmond    v.    Dues- 
berry     5,    13 

City  of  Richmond  v.   Wood..   770 
City    of    Washington    v.    Cal- 

houn     538 

City  of  Wheeling  v.  Black 341 

Claflin  v.   Steenbock.  .676,  720,  729 

Clare  v.   Com .  : 551,  552 

Clason   v.    Parrish 99 

Clayton  v.   Anthony 642 

Clarke's   Admr.  v.   Day, 

91,  93,  98,   103 

Clark  v.   Com 517 

Clark    v.     Franklin Ill 

Clark  v.    Hogeman 625 

Clark  v.  Iowa  City 383,  396 

Clark  v.  Railroad  Co 361 

Clark   v.    Sleet 177,516 

Clark  v.    Ward 679 

Clay  v.  St.  Albans 937 

Clearwater    Mercantile    Co.    -v. 

Roberts     314 

Clem   v.    Givens 321 

Clement  v.  Adams  Bros.  Payne 

Co 695,  696,  813 

Clemmitt  v.  N.  Y.  Ins.  Co 50 

Clendenning  v.   Conrad 791 

Clevenger  v.   Miller 646 

Clinch    River    Mineral    Co.    v. 

Harrison    680,  875,  692 

Cloud  v.  Campbell 145 

Cobbs   v.    Fountaine 147 

Cochran  v.    London   Corp 380 

Cockerell  v.   Nichols 646,   670 


Coda  v.  Thompson... 297,  697,  704 

Colborne  v.   Stackdale 890 

Colby   v.    Reams 190,    358,  523 

Cole    v.    Babcock 921 

Cole   v-    Fenwick 651 

Cole    v.     Martin 414,424 

Coles    v.    Withers 833 

Collett    v.    Baliffs    of    Shrews- 
bury        946 

Collett   v.    Lord    Keith 844,  941 

Collier  v.    Falk 466 

Collins    v.    Beatty , 228 

Collins   v.    Christian 777 

Collins  v.   George, 

504,   507,   521,   541,  560 

Columbia   v.    Cauca    Co 27 

Colon  v.   Lisk 313 

Colthirst    v.    Bejushin 969 

Columbia     Accident     Ass'n    v. 

Rocky    97, 

100,  102,    338,    450,    452,    457,  602 
Com.    Ass.    Co.    v.    Everhart..    323 

Comth.    v.    Ford 797 

Commonwealth  v.  McCue...  284 
Commonwealth  v.  Wampler..  58 
Conley  v.  Mathieson  Alkali 

Works    320 

Condon  v.  So.  Side  R.  R.  Co., 

24,  29 

Connell  v.  Ches.  &  O.  R.  Co.  364 
Connelly  v.  W.  U.  Tel.  Co...  91 

Connery  v.   R.   Co 634,  701 

Connor    v.    Johnson 230 

Conrad    v.    Bank 410 

Consolidated  Ice  Mach.  Co.  v. 

Trenton    Ice    Co 540 

Cookes  v.   Bank 170 

Cook    v.     Cox 972,  975 

Cook    v.    Daugherty 743 

Cookus    v.    Peyton 381 

Cooke    v.    Simms 143,973 

Cook    v.    Thornton 549 

Coombs    v.    Jordan 605 

Coons   v.    Coons 26,   27,   28,  130 

Cooper  Man.  Co.  v.   Ferguson  316 


CASES  CITED 


[References 

Cooper   v.    Monke 969 

Cooper   v.    Reynolds 348,693 

Copeland    v.    Collins 412 

Cornell    v.    Steele 30 

Corbin   v.    Bank 26,    53,  692 

Cornwallis  v.  Savery..882,  884,  953 
Cosner    v.    Smith, 

676,    693,    697,    708 
Coughlin    v.    Knights   of    Co- 
lumbus         351 

Countess  of  Northumberland's 

Case     896 

Courtney   v.    Phelps 860 

Coutts    v.    Walker 642-643 

Cowardin   v.    Ins.    Co 680 

Craft  v.   Boite 913,   914 

Craig    v.    Williams 714 

Cragbill   v.    Page 145 

Crawford  v.   Burke 580 

Crawford   v.    Daigh..82,  87,  88,  95 

Crawford  v.  Morris 5,  60,  536 

Craufurd   v.    Smith... 246,    385,  386 

Creekmur  v.   Creekmur 491 

Creel  v.   Brown 154,  363,  765 

Crews  v.   Lackland 999 

Crispin  v.   Williamson 924 

Criss    v.     Criss 397 

Crockett   v.    Etter 299,   300,   619 

Crogate's    Case 856 

Cromer   v.   Cromer. .  .  .35,   766,   800 

Cromwell  v.   Sac   County 546 

Cross    v.    Hunt 863,    867,  868 

Crumlish  v.  Central  Land  Co., 

130,    427 

Crud   v.    Lackland 924 

Cryps   v.    Baynton 953,   954 

Cudlip    v.    Rundle 940 

Culbertson  v.   Stevens 707 

Cummins   v.   Webb 672 

Cumber    v.    Wane 16 

Cunningham's    Case 528 

Cunningham   v.    Smith, 

334,    339,    894 

Cuppledick    v.    Terwhit 895 

Curry    v.    Hale 727 


are  to  pages.] 

Cutfordhay    v.    Taylor 987 

Cutter    v.  Powell..  131,  132,  133, 

134,    135,    136,    137,    138,    139,    140 

Cutler  v.   Southern 990 

Dale  v.   Phillipson 922 

Dally  v.   King.. 976 

Damron   v.    Bank 151,    162 

Damron    v.     Ferguson 744 

Dame  v.  Dame 228 

Danks    v.    Rodeheaver 518 

Danville   Bank  r.    Waddill 157 

I  Danville,       etc.,      R.       Co.      v. 

Brown    290 

Davidson    v.    Watts 269 

Davis    v.    Alvor 821 

Davis   v.    Bonney 638,   700 

Davis  v.   Cleveland  R.   Co 702 

Davis   v.    Com., 

573,   709,   710,   728,   729 

Davis    v.    Davis 798 

Davisson  v.   Ford 127,  148 

Davis   v.    Mayo 188,   190 

Davis    v.    Miller 441 

Davis   v.    Noll 441 

Davis   v.    Poland 415,   592 

Davis  v.  Roller.. 389,  400,  611,  628 

Davis  v.  Tel.   Co 588 

Dawson  v.  Western  Maryland 

R.    Co 107 

Daube  v.   Phil.,   etc.,   Co 557 

Dauks    v.    Rodeheaver 559 

Dean    v.    Cannon 595,    679 

Dean   v.    Comstock 228 

Dearborn    v.    Mathes 66 

Deaton    v.    Taylor 489 

Deatrick  v.  Insurance  Co., 

271,   318,   335,   358,   898 

Deering  v.  Kerfoot 35 

Deford  v.    Hayes 464 

Dejarnette's    Case 500 

Delaplain    v.    Armstrong.  .361,    676 

Delaplane  v.   Crenshaw 507 

Denham  v.   Stephenson, 

930,    939,    962 
Deni  v.  Penn.  R.  Co..  68 


IvIV 


CASES  CITED 


[References  are  to  pages.] 


Denison   v.    Richardson 918 

Dennids  v.   Central  R.   Co 69 

Dent   v.    Bryce 541 

Denver   R.    Co.   v.    Harp 374 

Derisley  v.  Custance.  .937,  939,  962 

Deybel's    Case '948 

Dickey    v.    Smith 749 

Didier    v.    Patterson 679 

Digby   v.   Alexander 946 

Digby    v.    Fitzharbert 884,862 

Digges   v.    Norris 145,   359 

Dike    v.    Ricks 861 

Dillard  v.  Cent.  Va.  &  Co....   318 

Dillard   v.    Collins 251,   252,   253 

Dillard  v.  N.  Y.  Life  Ins.  Co..   167 

Dillard  v.  Thornton 277,  619 

Dillingham   v.    Hawk 63 

Dimmett    v.    Eskridge 890 

Dimmey  v.  Wheeling  R.  Co..   463 

Dinguid    v.    Schoolfield 417 

Dingus  v.  Minn.  Imp.  Co 606 

Dishazer    v.    Maitland.; 494 

Dobbs    v.    Edmunds 973 

Dobbins  v.  Thompson 300 

Dobson  v.   Culpepper 188,   189 

Doheny  v.  Atl.   Dynamite   Co.  642 

Doolittle    v.    Co.    Ct 353 

Door  v.    Rohr 403 

Dorr   v.    Rohr 728 

Dorrier  v.  Masters. .  .638,  703,  724 
Douglass  v.  Central  Land  Co.  433 
Douglas  Land  Co.  v.  T.  W. 

Thayer    Co 205,    933 

Doulson    v.    Matthews 916 

Dovaston  v.   Payne... 951,  968,  969 

Dowell    v.    Cox 69,    398 

Dowland    v.    Slade 976 

Dowman's    Case 946 

Doyle    v.    Com 473,    564 

Doyle  v.   Cont.    Ins.    Co 315 

Drane    v.    Scholfield 134 

Drapers'   Exrs.   v.   Gorman, 

91,  93,  99,  103,  104 

Drew   v.    Anderson 170 

Driver    v.    Hartman..  .    516 


Driver  v.  So.  R.  Co...  514,  601,  602 

Drummond  v.    Douglas 362 

Dryden   v.    Steven 428 

Du   Bois  v.   Seymour 94 

Dudlow    v.    Watchorn 988 

Duff  v.   Com 639 

Duffield   v.    Scott 985 

Dukev.  N.  &  W.  Ry.  Co...  173,  473 
Duke  of  Newcastle  v.  Wright, 

930,  939 

Dulin   v.    McCaw 692 

Dundas  v.   Lord   Weymouth..  995 

Dungan  v.    Henderlite 86,   88 

Dunlop    v.    Keith 678 

Dunn   v.    Penn.    R.   Co 347 

Dunn   v.    Railway    Co 347 

Dunn  v.  Remmick 415 

Dunsday   v.    Hughes 930 

Dunstall    v.    Dunstall 973 

Durant  v.    Essex   Company...  769 

Durkee   v.    National    Bank....  442 

Duster    v.    Cowdry 228 

Duty   v.    Sprinkle 707,  723 

Dyster    v.    Battye 976 

Earl  of  Kerry  v.  Baxter, 

958,    959,  960 
Earle    v.    McVeigh, 

301,    325,  728 
Easley    v.     Valley     Mut.     Life 

Assn 504 

Eastern      State      Hospital      v. 

Graves     381 

East   v.    Hyde 360 

Eaton    v.    Moore 351 

Eaton   v.    Southby 946 

Eaves    v.    Vial 142,  965 

Eckles  v.   N.,  etc.,   R.  Co 585 

Eden's   Case 870,  914 

Edmunds  v.  Hobbie  Piano  Co., 

12,   216,   219,  645 

Edmonson    v.    Potts 390,  767 

Edmondson    v.    Thomasson, 

440,  442 

Education  v.  Holt 780 

Elam   v.    Bass..                           .  211 


CASES   CITED 


LV 


[References 

Elam  i:    Commercial   Bank, 

113,    115 

Elgin  v.    Marshall 753 

Ellington  v.   Ellington 229 

Elliott    v.    Ashby 753 

Elliott  v.   Carter 35,  36 

Elliott    v.    Sutor 537 

Embry    v.   Jemison 403 

Emerick    v.    Tavener 198 

Emerson       v.       Santa       Clara 

County     541 

Empire    Coal    &    Coke    Co.    v. 
Hull  Coal  &  Coke  Co., 

133,    136,    137 

Enders  v.   Burch 276,  626,  670 

Enos    v.    Stansbury 595 

Erskine    v.    Staley 714 

Essengton    v.    Boucher 895 

Estes  v.    Stokes 391 

Ewart    v.    Saunders 622 

Ewing   v.    Ewing 573 

Evans    r.    Atlantic    C.    L.    Ry. 

Co 236,    237,    238 

Evans  v.   Greenhow.  .659,  660,  699 

Evans   v.   Johnson 309,   397 

Evans    v.    Prosser 982 

Evans    v.    Rice 546 

Evans    v.    Stevens 1000,    1001 

Eppes   v.    Smith 104 

Exchange    Bank   v.    Southall..   873 
Executors    of    Grenelefe.  ..896,  897 

Eubank    v.    Smith 491 

Fairfax  r.    Lewis 113,   493 

Farinholt    v.    Luckhard 796 

Parish   &  Co.  v.   Reigle 543 

Farley    z1.    Richmond,    etc.,    R. 

Co 491 

Farmers'    Bank  v.    Day 714 

Farmers'   Nat'l   Bank  r.   How- 
ard     738 

Faulconer    v.     Stinson. .  .  .748,  749 

Feamster   r.    Withrow 646 

Feazle    v.    Dillard 441 

Federation  Window  Glass  Co. 
v.   Cameron    Glass   Co..        .    149 


are  to  pages.] 

Federation  Glass  Co.  v.  Cam- 
eron   Glass    Co 277 

Fentress   v.    Pocahontas    Club, 

490,  770 

Ferrell    v.    Ferrell 308 

Ficklin    v.    Carrington 402 

Fidelity    Co.    v.    Beale 779 

Fidelity  Co.  v.  Chambers....  497 
Fid.  L.  &  T.  Co.  v.  Dennis...  827 

Findley    v.    Cunningham 416 

Findley    v.    Smith 649 

Fire   Assn.   v.   Hogwood 465 

First  Nat.  Bank  v.  Harkness.  715 
First  National  Bank  v.  Kim- 

berlands     156 

First  Nat'l  Bank  v.  Turnbull.  644 
Fishburne  v.  Ferguson, 

451,  503,  506,   508,   535,  728 

Fisher   v.    Burdette 449 

Fitch  v.  Leitch 149 

Fits    v.    Freestone 851 

Fitzhugh    v.    Fitzhugh 765 

Fitzgerald    v.    Fitzgerald 319 

Flanary   v.    Kane 745 

Fletcher    v.    Pogson 968 

Florance    v.    Morien 744,  757 

Florida   Cent.    R.    Co.    v.   Ash- 
more     967 

Fla.    R.   Co.   v.   Rhodes 541 

Flower  v.    Ross 944 

Flubarty  v.    Beatty 30 

Flynn    v.    Jackson 755 

Foden   v.    Haines 864 

Foley  v.   Ruley 297,   322 

Forbes  r.   Hagman. .  .234,-  240,  730 

Ford  v.   Thornton 441,   442 

Foreman  v.  Norfolk,  etc.,  Co.  772 
Forest  Coal  Co.  v.  Doolittle..  780 
Fort  Dearborn  Lodge  r.  Klein.  934 

Foster    v.    Rison 389 

Foushee   v.    Lea 464 

Fowler  v.   Balto.   &  O.   R.   Co.  494 

!  Fowler    v.    Mosher 300 

Fox  v.  Balto.   &  O.   R.   Co., 

588,    589 


IvVI 


CASES   CITED 


[References  are  to  pages.] 


Frank  v.   Chosen   Freeholders.  817 

Frank   v.    Gump 20,  950 

Franklin   v.    Peers 754 

Frazier   v.    Littleton 36 

Freitas   v.    Griffith 662 

Fritts    v.    Palmer 315 

Frost    v.    Spitley 207 

Fry  v.   Leslie 546,   1020 

Fry   v.    Payne 393 

Fry    v.    Stowers, 

204,   205,  206,  207,   541,  542 

Fugate  v.   Moore 66 

Fulgham    v.    Midland    Valley 

R.     Co 70 

Fulkerson  v.  Taylor, 

612,   613,   614,   619,   628,  629 

Fulmerston    v.    Steward 969 

Fulz   v.    Davis 431 

Funkhouser  v.   Spahr 768 

Furst  v.   Banks, 

170,    401,    610,    721,  733 

Gage    v.    Crockett 745 

Gainer  v.   Gainer 74 

Gaines   v.    Merryman 752 

Gainsford    v.    Griffith 959 

Gale    v.    Read 962 

Galpin    v.    Poge 304 

Gait   v.   Archer 137 

Gannaway  v.  Tate 715 

Garber  v.  Armentrout 120 

Gardner  v.  Mobile,  etc.,  R.  Co.  634 

Gardner    v.    Vidal 630 

Garland  v.   Davis 888 

Garner  v.  Garner 304 

Gary  v.  Abingdon  Pub.  Co., 

154,  342,  347,  362,  363,  765 

Gatewood  v.  Garrett 253,  504 

Gatewood  v.   Goode 618 

Gayle  v.  Betts 880 

Gebbie    v.    Mooney 554 

Gee  v.   Hamilton 104 

Geiger  v.   Harmon 13,  14 

George   Campbell   Co.  v.   Geo. 

Angus  Co., 

148,  149,  263,  338,  600,  923 


Ga.   Home   Ins.   Co.  v.   Goode, 

146,    359,    545,    924,    999 

Gerity  v.   Haley 486 

Gibbons  v.  Jameson's  Exrs...      79 
Gibboney  v.   Cooper..  146,  359,  545 

Gifford    v.    Perkins 993 

Gilbert  v,   Parker 868,  869 

Gillespie  v.   Terrance 460 

Gilman  v.   Ryan 751,  816,  819 

Ginter  v.  Shelton 751 

Glenn  v.   Marbury 56 

Glos  v.  Goodrich 374 

Godfrey's   Case 549 

Godson  v.  Good 984 

Gold  v.  Poynter 383 

Goldey  v.    Morning   News....   319 

Goldsberry  v.   Carter 316 

Goodell  v.   Gibbons 424 

Goodtitle  v.  See. . 595 

Goolsby  v.  St.  John 299,  323 

Gooseley  v.  Holmes 576 

Goram  v.  Sweeting 891 

Gordon  v.  Funkhouser, 

171,   176,  177 

Gorman  v.   Steed 744 

Goshorn  v.   Steward 128 

Gourney  v.    Fletcher 973 

Gover   v.    Chamberlain.  ..  .412,   413 
Grafton  R.  Co.  v.  Foreman...    748 

Graham  v.  Cit.  Nat.  Bank 476 

Graham  v.   Peat 229 

Graham  &  Scott  v.  Graham  & 

Lane    988 

Grandstaff  v.  Ridgely 646 

Graves  v.  Scott k .  . . 235,  764 

Gray's   Case 503 

Gray  v.  Kemp 156 

Grayson  v.  Buchanan 334 

Great  Western   Mining  Co.  v. 

Harris     63 

Green  v.   Disbrow 388 

Green  v.   Dodge 424 

Green  v*  Douglas  Land  Co...   432 

Green  v.  Judith 492,  495 

Green   v.    Palmer..  .    639 


CASKS  CITED 


LVII 


[References  are  to  pages.] 


Greenhow  v.   Ilsey 935,  951 

Gregg  v.  Sloan 715 

Gregg  v.  Dalsheimer 151,  152 

Gregory  v.   Ohio   R.   Co... 398,  529 

Griffin    v.  'McClury 56 

Griffin  v.   Woolford 402,  403 

Griffith    v.    Crockford 885 

Griffith    v.    Eyles 972 

Grimes     Dry     Goods     Co.     v. 

Malcolm    539 

Grimstead    v.    Marlowe 935 

Grimwood   v.    Barritt 920 

Gring  v.  Lake  Drummond  Ca- 
nal  &  Water  Co., 

152,  153,  267,  275,  276 
Grocer's  Co.  r.  Archbishop  of 

Canterbury    867 

Groenvelt   v.    Burnell 946 

Grove  v.  Grove 393 

Grubb    v.'  Burford, 

83,    115,    117,    128,   154 
Grubbs  r.    Nat.    Ins.    Co., 

169,    172,  584 

Grubb   v.    Suit 59,  395 

Guarantee    Co.    v.    First    Nat. 

Bank    72,   269,  285, 

294,    336,    350,    680,    893,    977,  984 

Gulf   Ry.   v.   Moseley 389 

Gunn  v.   Ohio 588 

Gutch    v.    Fosdick 383 

Gwynn   v.    Schwartz 744 

Haffey    v.    Miller 714 

Haines  v.   Cochran.  .  .242,  243,  245 
Hale  v.  Chamberlain..  164,  167,  168 

Hale    r.    Wharton 294 

Hall  t-.  Bank 680 

Hall    r.    Com 535 

Hall   t-.    Glidden 439 

Hall  r.   Graham 548 

Hall  v.  Hall 517 

Hall   z>.    Lanning 65,    293,  306 

Hall  v.  Ratliff 174,  177,  531 

Hall    v.    Taylor 646 

Hall  v.   Smith 143 

Hallet  v.  Bryt 871 


Hallowes  v.   Lucy •. 981 

Halsey  v.  Carpenter 918 

Hamer  v.    Commonwealth....   754 

Hammen   v.    Minnick 649 

Hammond    v.    Dodd 969 

Hamtramck   v.    Selden,    With- 
ers   &   Co 766 

Hancock     v.      Whitehall     To- 
bacco   Co.     9 

Handford    v.    Palmer 952 

Handlan  v.   Handlan 297,  322 

Handy  v.  Smith 381 

Hanger    v.    Commonwealth, 

348,  771 

Hanks  v.  Lyons 164 

Hannah   v.    Bank 750 

Hanna    v.    Wilson 397 

Hansbrough  v.   Neal 504,  535 

Hansbrough  v.   Stinnett, 

254,    364,    476,  753 
Hansbrough  v.  Thomas..   490,  492 

Hansfort  v.   Elliott 405 

Hardaway    v.    Jones 210 

Hardy  v.  Cathcart 920 

Hargrave    v.    Shaw    Land    Co.  507 

Harkness  v.  Hyde 327 

Harlow  v.  Wright 969 

Harman    v.     City    of     Lynch- 

burg    745 

Harman    v.    Howe 465,  468 

Harman  v.    Oberdorfer 621 

Harman    v.    Ratcliff 197 

Harrington   v.    Harkins 462 

Harris   v.    Ferrand 86& 

Harris    v.    Lewis Ill 

Harris    v.    Prett 958 

Harris  v.    Shield 107,  396- 

The    Harrisburg 350,  379 

Harrison  v.   Brock 31,  98 

Harrison   v.    Brooks 489 

Harrison  v.  Clemens 596,  597 

Harrison    v.    Middleton 5 

Harrison   v.    Wissler 285 

Harrison  &  Bro.  v.  Homeopa- 
thic   Asso.  .   821 


IvVIII 


CASES   CITED 


[References  are  to  pages.] 


Harrison's   Case 167 

Hartly  v.  Herring 961 

Harvey  v.   Epes 244 

Harvey    v.    Skipwith 295,323 

Hasher   v.    Hasher 391,  392 

Haskin    Wood    Co.    v.    Cleve- 
land  Co 640 

Hatcher    v.    Lewis 95 

Hatcher    v.    Lord 633 

Hatorff   v.    Wellford 787,789 

Hatton    v.    Morse 871,  872 

Haupt   v.    Teabault 570 

Hawe    v.    Planner 920 

Hawkins   v.    Eccles 937 

Hawkins      v.      New      Orleans 

Printing    Co 563 

Hawk's   Nest  v.   Co.   Ct 780 

Hawley   v.    Ferguson 537 

Haworth    v.    Spraggs 1000 

Hawpe    v.    Bumgardner. .  .759,  620 

Hayman    v.    Gerrard 884 

Haymond    v.    Camden 728 

Hays   v.    Bryant 957 

Hayes  v.  Va.  Mutual  Protect- 
ive   Ass'n 102 

Hearn    v.    Kiehl 17 

Heelyer's    Case 870 

Hefner  v.    Fidler 210 

Helier    v.    Whytier 862 

Helm    v.    Helm 798,  803 

Henderson    v.    Hepburn 265 

Henderson  v.   Stringer, 

341,    342,  361 

Henderson    v.    Southall 433 

Hendricks  v.   Com 553 

Kendy   v.    Stephenson 929 

Henry  v.   Carleton 893 

Herlakenden's    Case 873 

Herndon  v.   Chicago   R.   Co...    315 

Herring  v.    Blacklow 860 

Herring  v.  Ches.  &  W.  R.  Co.  745 

Hess    v.    Gale 309 

Hess    v.    Still 429 

Hewitt    v.    Comth 464,465 

Hickman  v.   Walker..  .   989 


Hicks  v.   Roanoke  Brick  Co., 

635,   751,   760,   774,  816 
Higgenbotham    v.    Rucker....   213 

Higgins   v.    Highfield 921 

Hill   v.    McCullough 647 

Hill    v.    Montagu 945,953 

Hill    v.    Rucker 598 

Hill    v.    Saunders 938 

Hilton  v.  Consumers  Can  Co., 

272,    327,    711,  722 

Hilton   v.    Dickinson 749,  750 

Hinton  v.   Ins.   Co 304 

Hinton    v.    Roffey 945 

Hitchcox  v.   Morrison 207 

Hite   v.    Com 472,  759 

Hite    v.    Wilson 576 

Hix    v.    Drury 563 

Hobson    v.    Hobson 772 

Hobson    v.    Middleton 866 

Hockman   v.    Hockman 608 

Hodge    v.    State 539 

Hodges    v.    Eastern 531 

Hoffman    v.    Dickinson.. 145 

Hoffman    v.    Shartle 544 

Hogan    v.    Guigon 780 

Hogan   v.    Wilmouth, 

252,   254,   349,   487,   901,   949 

Hoge  v.  Turner 509 

Holker    v.    Hennessey 700 

Holladay  v.  Littlepage 421,  422 

Holker    v.    Parker 23 

Holland   v.    Shelby 1004 

Hollandsworth    v.    Stone 488 

Holler  v.  Bush 871,  992 

Holleran  v.   Meisel 514 

Hollingsworth    v.    Sherman...    198 

Hollins    v.    Briarfield 387 

Holman    v.     Gilliam 51 

Holman    v.    Omaha,    etc.,    Co.  420 

Holmes    v.    Catesby 844 

Holmes    v.    Jennison 768 

Holmes   v.    Rhodes 957 

Holt  v.   Lynch 625,  628 

Holy  Trinity  Church  v.  United 
States  .    355 


CASES   CITED 
[References  are  to  pages.] 


LIX 


Homestead    Cases    789 

Homestead  Ins.  Co.  v.  Ison..  400 

Hood   v.    Bloch 362 

Hoover    v.    Mitchell 590 

Hopkins  v.   Hopkins 391 

Hopkins     v.      Nashville,     etc., 

Ry.    Co 482 

Hopkins    v.    Stephens 195 

Hopkins    v.    Ward 195,204 

Hore    v.    Chapman 973 

Horn   v.    Perry 322 

Horner    v.    Speed 490 

Hortenstein  v.  Va.-Car.  R.   Co., 

91,    346,    364,    365,  764 

Horton    v.    Bond 622 

Horton   v.   Townes 977 

Hortons    v.    Townes 269 

Hoster     Co.     v.     Stag     Hotel 

Corp 767 

Hotham  v.   East   India   Co....  950 
Hot    Springs    L.    Co.    v.    Rev- 

ercomb     522 

Houff  v.  German  Ins.  Co 507 

Houston    v.    McVeer 132,  141 

Howall    v.    Caryll 228 

Howard   v.    Landsberg 67,  309 

Howard  v.  Rawson 1000 

Howdashall   v.    Krenning 494 

Howe   v.    Quid 699 

Howell   v.    Richards 974 

Howell    v.    Thomason 670 

Hubbard   v.    Blow 95 

Hubbell  v.   Wheeler 229 

Hubble    v.    Poff 409 

Hudgins     v.     Simon 570 

Hudson    v.    Jones 875 

Huff  z>.    Broyles 364,   442,  451 

Huff    v.    Thrash 186 

Huffman     r.     Western     Mort., 

etc.,    Co 315 

Huggins    z:    Wiseman 954 

Hughes    v.     Frum 134 

Hughes    r.     Phillips 862 

Hull    r.    Watts 386 

Hulvey  v.  Roberts 348,  744,  771 


Hume    v.    Liversedge 867 

Humphrey    v.    Hitt 635 

Humphrey  v.  Valley  R.  Co...  762 

Humphreys    v.    Bethily 892 

Humphreys   v.    West 492,  495 

Humphries  v.   District  of   Co- 
lumbia      539 

Hunt  v.   McRae 265 

Hunt   v.    Martin 874 

Hunter    v.    Snyder 488,493 

Hunter    v.    Stewart 292 

Huntington  Nat.  Bank  v.  Loar  494 

Hurley  v.   Charles 197 

Hutchinson    v.    Jackson 967 

Hutchinson    v.    Piper 926 

Hutson   v.    Lowry 779» 

Hyatt   v.    Wood 228 

Hynde's    Case     870 

laege  v.  Bossieux, 

814,    827,    829,  832 

Ilderton    v.    Ilderton 912 

Ins.    Co.    z'.    Barton 566 

Ins.    Co.    v.    Hall 399 

Insurance   Co.  v.   Morse 24 

1  Inter.   Harvester  Co.  v.  .Smith  753 
Inter.    &    G.    N.    Ry.    Co.    v. 

Greenwood    953 

Interstate    Co.   z1.    Clintwood..  197 
Ivanhoe      Furnace      Corp.      v. 
Crowder, 

60,   61,   536,  559,  572,  574 
Ivaia    v.    Eastern    State    Hos- 
pital     : 67 

Jackson  v.   Dotson. .  .151,   152,  153 

Jackson    v.    Hull 409 

Jackson  v.    Hough 120,  133 

Jackson    v.    Jackson 144 

Jackson    v.    Pesked 355 

Jackson  z1.  Wickham 567,  755 

Jackson  v.  Valley  Tie  Co 712 

Jacobs    v.    Nelson 969 

Jacobs    v.    Sale 595 

James    v.    Life 622 

James    v.    Stokes 779 

Tames    River    Co.    r.    Adams..  542 


CASES  CITED 


[References  are  to  pages.] 


James  River,  etc.,   Co.  v.   Lee, 

203,    265,  266 

J'Anson    v.    Stuart 844,955 

Jedmy    v.    Jenny 946,953 

Jenkins   v.    Montgomery 545 

Jennings  v.   Bennett 780 

Jennings  v.   Gravely 203 

Jester  v.   Balto.   Steam  Packet 

Co 319 

Jewett   v.    Ware 797 

Johnson    v.    Balto.    &    O.    Ry. 

Co 482 

Johnson    v.    Black 381 

Johnson   v.    Fry 149 

Johnson    v.    Burns 496,497 

•  Johnson  v.  Ches.  &  O.  Ry.  Co., 

486,    487,    489,    490,  491 

Johnson   v.    Com 479,   565,  759 

Johnson    v.    Jennings 138 

Johnson   v.    McClung 108 

Johnson    v.    Miller 238 

Johnson  v.   Picket 920 

Johnson    v.    Powers 66 

Johnson    v.    Stockham 722 

Johnson    v.    Wheeler    Lumber 

Co 168 

Johnston    v~    Bunn 830 

Johnston  v.    Wilson 415 

Johns    v.    Whitley 929 

Jones    v.    Alexander 832 

Jones  v.  Anderson... 692,  694,  732 

Jones-  v.    Crim 619 

Jones   v.   Com... 472,   527,   553,  560 

Jones    v.    Dungan 244 

Jones    v.    Finch 236 

Jones    v.    Fox 207 

Jones  v.  Lemon 378,  394,  395 

Jones   v.    Martinsville 478,  560 

Jones   v.    Merrell 304 

Jones   v.    Old    Dominion    Cot- 
ton    Mills     491,  762 

Jones   v.    Perkins 17 

Jones    v.    Stevenson 360 

Jones  v.  Thomas.. 50,  51,  108,  110 

Jordan    v.    Williams 213 


Jordan  v.  Wyatt, 

,225,    226,    227,   347 

Judin    v.    Samuel 987 

Justice    v.    Moore 212 

Kain    v.    Angle 57 

Kankakee  Drain  Dist.  v.  Coon  270 

Karnes    v.    Johnson 309 

Karnuff  v.   Kelch 350 

Kaufman  v.  Mastin 5 

Kaufman   v.    Richardson 92 

Kawawanakoa  v.    Pollyblank..  29 £ 
Kay  v.  Glade   Creek  &  R.   R. 

Co 514 

Kecoughtan    Lodge  v.   Steiner  772 

Keene   v.    Monroe 507 

Kelly   v.    Hamblen 92 

Kelly   v.    Met.    R.    Co 396- 

Kemp  v.  Mundell  and  Chapin, 

91,  98,  103 

Kemper    v.    Calhoun 597 

Kennedy   v.    Davidson 434 

Kenefick    v     Caulfield, 

149,    704,    708 

Kenicot  v.    Bogan 86& 

Kennaird    v.    Jones... 142 

Kennerly   v.    Swartz 801 

Kesler  v.    Lapham 696,  716 

Kesterson    v.    Hill 379 

Kibler    v.    Com 514 

Kimball  v.  Borden 503,  504 

Kimball   v.    Friend 588 

Kincheloe    v.    Tracewells 190 

King  qui  tarn  v.  Bolton. .  .863,  864 

King  v.    Burdette 615,  619 

King    v.    Davis 299 

King    v.    Fraser 976 

King  v.  McDaniel 121 

King  v.   Morris    (N.  J.)...347,  362 

King  v.  Mullins 196 

King  v.  N.  &  W.  R.  Co...  148,  601 

King  v.    Shakespeare 984 

Kinney   v.    Beverly 576 

Kinney    v.    Craig 387 

Kinney    v.    McClure 392 

Kinsie  v.   Riely..452,  457,   459,  755 


CASES   CITED 


LXI 


[References  are  to  pages.] 


Kinsley    v.    County    Court 433 

Kirkland    v.    Brune 715 

Kirk's   Case    552 

Kirn  v.  Champion  Iron  Fence 

Co 824,  829 

Klinkler    v.    Wheeling 517 

Knight    v.    Charter 635 

Knight  v.   Farnaby 917 

Knight    v.    Zahnhiser 780 

Knowles  v.   Gas   Light   Co 305 

Knowlton    v.    Watertown 405 

Knotts   v.    McGregor 362 

Knootz    v.    Knootz 525 

Koonce  v.   Doolittle 770 

Kromer    v.    Hein 17 

Kuhn  v.   Brownfield 402 

Kyles    v.    Ford 297 

La   Crosse,    etc.,    Co.    v.   Van- 

derpool     .". 817 

Lafayette    Ins.    Co.    v.    French  319 

Laidley  v.   Smith 382 

Lake   v.    Raw....¥ 950 

Lamb    v.    Cecil 402 

Lamb    v.    Mills.., 941 

Lamb    v.    Thompson.....   746,  750 

Lambert    v.    Cook 862 

Lambert  v.   Ensign   M'fg.   Co., 

350,  379 

Lambert   v.    Stroother 228 

Lancton    v.    State 478 

Land   Co.   v.    Calhoun 490 

Lane   v.    Bauserman.  .272,   326,  327 

Lane    Bros.    v.    Bott 494 

Lane   Bros.  v.   Sealsford 346 

Langford    v.    Webber 935,936 

Langhorne  v.   McGhee. .  .  .130,  432 
Langhorne   v.   Rich.   Ry.   Co., 

345,  581 

Lanham    v.    Glover 803 

L'Anson    v.    Stuart 953 

Lavell  v.  McCurdy 297,  614 

Lawson    v.    Lawson 66 

Lawson    v.    Williamson    Coal 

&    Coke    Co...  ..128.  133 


Lawrence     v.     Winifred     Coal 

Co 400,  401 

Lawson  v.   Zinn 433 

Layton    v.    Grindall 923 

Lea  v.   Luthell 971 

Leake   v.    Lacey 706 

Leavell  v.   Smith 35 

Le   Bret  v.   Papillion 983,  984 

Lee    v.    English 538 

Lee   v.   Feemster 410 

Lee    v.    Hassett 671 

Lee  v.  Mutual,  etc.,  Life  Ass'n.     76 
Lee    v.     Mut.     Reserve     Fund 

Ass'n     345,  347 

Lee   v.    Rogers 991 

Lee  v.   Va.    Bridge   Co 129 

Lee   v.    Watson 745 

Lee    v.    Willis 321,539 

Leffingwell   v.   Warren, 

198,    380,    398,  407 

Leftwich  v.  City  of  Richmond.  196 
Leftwich   v.    Commonwealth..   754 

Leftwich  v.  Wells 560 

Legum    v.    Blank 348 

Leigh  v.   Ripple 754 

Leneret   v.    Rivet 958 

Leonard  v.  City  of  Brooklyn..    817 
Leonard   v.    Henderson.. .  .378,  394 

Lester  -v.   Pedigo 830 

Letterman     v.     Charlottesville 

Co 71,    440 

Levy  v.   Arnsthall 731 

Lewis   v.    Arnold 546 

Lewis   v.    Bacon 410 

Lewis    v.    Botkin 301 

Lewis  v.  Ches.  &  O.  R.  Co...   494 

Lewis   v.    Com 297,  509 

Lewis  v.  John  Crane  &  Son..   350 
Lewis   v.    Hicks..  152,    153,   338,456 

Lewis  v.    Long 86 

Lewis    v.    Preston 946 

Leyfield's    Case 1003,    1004 

Life  Ins.  Co.  v.  Hairston 511 

Limer  v.   Trader's    Co 136 

Lincoln    v.     Stern 614 


LXII 


CASES   CITED 


[References  are  to  pages.]  t 


i 


Lindell    v.    Monroe 145 

Lindley    v.    Miller 351 

Lindsay    v.    Murphy 791 

Linkenhoker  v.   Detrick. .  .793,  799 

Lipscomb  v.  Condon 644,  699 

Liquid  C.   Co.  v.   N.   &  W.   R. 

Co 380 

Litton   v.    Com 589 

Liskey  v.  Paul...  175,  177,  414,  422 
Locke    v.    Frasher..  .    189 


Lockridge   v.    Lockridge 744 

Long  v.  Campbell..      355,  356,  359 
Long's    Case 969 


Long  v.  Pence...  172,  173,  800,  801 


Long  v.  Ryan. 


679 


Longuville   v.   Thistleworth.  . .    999 
Loop  v.   Summers 680 


Lord  v.   Henderson 128,  133 

Lord  Arlington  v-   Merricke..   959 

Lord    Clinton   v.    Morton 905 

Lord  Huntingtower  v.  Gardine.  968 
Louisville  Nail  Co.  v.  Barnes.  19 
Louisville,  etc.,  R.  R.  Co.  v. 

Clark    384 

Lovejoy  v.  Murray 19,  56,  247 

Loving  v.  Small   (Iowa) 817 

Low  v.    Settle 537 

Low    Moor    Iron    Co.    v.    La 

Bianca   68,  506 

Lowenback  v.  Kelley..659,  670,  671 

Lucas  v.   Nockells 867 

Lusk  v.   Kimball 66,  403 

Lusk  v.   Pelter 

Lusk  v.    Ramsay 


205 

652 

Lydick  v.  B.  &  O.  Ry.  Co 969 

Lynchburg     Cotton     Mills     v. 

Rives    196 

Lynchburg      Milling      Co.      v. 

Bank    ' 474,  482 

Lynchburg  Tel.  Co.  v.  Booker, 

542,  773 

Lynch   v.  Thomas 210,  211 

Lynch.  Traction  Co.  v.  Guill..  346 


Lynnet  v.   Wood. 
Lyon    v.    Vance. . 


992 
680 


McCall   v.    Herring 1020 

Mackie  v.  Davis 134 

Maddox  v.  U.  S 563,  56ft 

Magarity   v.    Shipman 388,  430 

Maggort  v.    Hansbarger 329 

Mahoney  v.   James 803 

Mainwaring   v.    Newman 1000 

Maloney  v.   Barr 122,  123 

Malsby  v.   Lanark  Co 362 

Manchester  Loan   Co.  v.   Por- 
ter     12,   521,   523,  661 

Manderville  v.   Perry 481 

Mangus  v.  McClelland, 

452,   454,  455 

Manser's  Case 957,  969 

Manson   v.    Rawlings 292 

Manuel    v.    Norfolk    &    VV.    R. 

Co 350,  379,  401,  406 

Maple   v.  'John, 

90,    491,    495,    496,  497 

Marbach  v.   Holmes 197 

Marchant   v.    Healy 746,  750 

Marion    v.    Craig 748 

Markin  v.  Jones,.  120,  132,  133,  141 

Marples  v.  Standard  Oil  Co..  351 

Marsh  v.   Bulteel 952 

Marshall  v.  Palmer 195 

Marshall   v.    Riggs 973 

Marsteller  v.   Coryell 490 

Martin  v.  Martin 28 

Martin  v.  Monongahela  R.  Co.  350 

Martin  v.  Ohio  River  Co 537 

Martin  v.  Ry.  Co 761,  767 

Martin  v.   Smith 946,  972 

Martinely  v.   Gerber 229 

Martz   v.    Martz 516 

Mason  v.  Bank 359 

Mason  v.  Rawlings 635 

Massey  v.  Southern  R.  Co....  495 

Matheny   v.   Allen 205 

Matheson   v.   Grant 573 

Matthews    v.    Gary 941 

Matthews  v.   Com 571 

Matthews   v.   Jenkins 139 

Mathews  v.  Mathews 592 


CASES  CITED 


LXII1 


[References 

Matthews  Co.  v.  Progress  Co.  770 

Matthews   v.    Warner 69,   464 

Mayo    v.    James 780 

Meade  v.  Meade 474,  483 

Means  v.   Bank  of  Randall...   468 

Hears  v.  Dexter 188,  760 

Medina  v.  Stoughton 980,  984 

Merchants'  Bank  v.  Evans 489 

Merchants   &   Mechanics    Sav- 
ings Bank  v.  Dashiell. .  .134,  814 
Merchants'  Trans.  Co.  v.  Mas- 

ury   495,  498 

Mercantile     Co-Op.     Bank     v. 

Brown    713 

Merdith    v.    Alleyn 880 

Merriman  v.   Cover 874,  986 

Merriman  Co.  v.  Thomas, 

151,    152,    162 

Merritt   v.    Bunting 564 

Merryman  v.   Hoover 196,  206 

Messick   v.    Thomas...- 538 

Metropolitan  Ins.  Co.  v.  Ruth- 
erford     497,   767 

Metz   v.    Snodgrass 516 

Meyer  v.   Mo.   Glass  Co 638 

Michaux  v.    Brown 606 

Miller  v.   Black  Rock  Co 360 

Miller  v.    Hyde 19,   56,   247 

Miller  v.   Miller 23,  24,  360 

Miller  v.   McLuer 339,  341 

Miller   v.   Turner 776 

Miller  v.  White, 

693,  694,  697,  715,  718,  725 

Miller  v.   Wills 568 

Miller  v.   Zeigler 697,  722,  723 

Milner  v.   Crowdall 1003 

Milske  v.  Steiner  Mantel  Co..   350 

Miner  v.   Markham 293 

Minnick  v.    Williams 87,   88,   96 

Minor  v.   Minor 149 

Mints  v.  Bethil..  .953,   954,   956,  958 
Mo.   Pac.   R.   Co.  v.  Tex.   Pac. 

R.    Co 63 

Mitchell  v.   Com 295,  323 

Mitchell    v.    Witt..  .   775 


are  to  pages.] 

,  Mobile,  J.  &  K.  C.  Ry.  Co.  v. 

Smith    , 973 

Mole  v.  Wallis ! 990 

Monk  v.  Exposition  Corp 829 

Montgomery's    Case 504,    506 

Monticello    Bank  v.   Bostwick.  531 
Moore  v.    Baltimore    &   O.    R. 

Co 244,    503,    585 

Moore    v.    Douglas 188 

Moore  v.  Earl  of  Plymouth, 

974,    975 

Moore   v.    Holt 695,   704 

Moore  v.   Mauro 148,  149,  955 

Moore    v.    Pudsey 888 

Moore   v.    Rolin 820 

Moore   Lime   Co.  v.  Johnston.  585 

Moores  v.  White 698 

Moran   v.    Clark. 787 

Moran   v.    Dawes 229 

Moreland  v.   Moreland, 

100,    152,    157 
Morgantown  Bank  v.  Foster, 

143,    144,   156,   157,   363 
Morley  v.  Lake  Shore  Ry.  Co.  547 

Morris   v.    Harveys 429 

Morris   v.    Lyons 414 

Morris  v.  Peregoy 210 

Morrison  v.  Householder 402 

Morriss   v.    Harveys 833 

Morstock  Ins.   Co.  v.   Pankey, 

163,   169,  172,   177,   180,  292 

Moser  v.  Jenkins 970 

Moses  v.  Trice 591 

Mostyn  v.  Fabrigas 78,  912 

Moseley   v.    Jones 144 

Mowbray  v.  Com 551,  552 

Mumpower  v.   City  of  Bristol.  397 

Mulball   v.    Fallon 68 

Murphy    v.    Richmond 793 

Muse  v.   Farmer's  Bank 590 

Mutual  B.  Life  Ins.  Co.  v.  At- 
wood's  Admr'x 109 

Mutual   Ins.   Co.  v.   Oliver, 

»          142,   516 


I/XIV 


CASES  CITED 


[References  are  to  pages.] 


Mutual  L.  Ins.  Co.  v.  Spratley, 

317,   319 

Myers  v.  M<?Cormick 678 

Myers  v.  Trice 466 

Myers  v.   White 228 

Myn   v.    Cole 970 

McAlexander  v.  Harris 255 

McAllister    v.    Guggenheimer, 

694,    721,    733 

McCarthy  v.    Groff 820 

McCartney   v.    Tyrer, 

379,    410,    411,    829 

McClain   v.    Balton 375 

McClallan    v.    Smith 832 

McClung  v.    McWhorter 325 

McCluny  v.  Jackson.  .692,  708,  724 

McCord   v.    Williams 439 

McCormick  v.    Williams 240 

McConiha    v.    Guthrie 785 

McCrowell  v.   Burson 140,  748 

McCue's   Case 774 

McCurdy   v.    Smith 38 

McDowell  v.   Hall 210 

McDonald    v.    Peacemaker, 

122,    123 

McEldowney  v.    Wyatt 379 

McGinnis  v.  Currie 23 

McGlamery  v.  Jackson. ...  146,  359 

McGruder  v.   Lyons 751 

McGuire    v.    Gadsby 97 

Mcllvane   v.   Big  Stony    Lum- 
ber Co 109 

Mclntyre  v.   Smith, 

207,   481,   541,   773 

McLaugherty  v.  Croft 411 

McKinster   v.    Garrott 175 

McMillan   v.   Spider   Lake   Co.     68 
McMurray  v.   Dixon..203,  206,.  395 

McMurray  v.   Taylor 831 

MacDulta    v.    Lochridge 62 

McNutt  v.   Young, 

253,    263,    333,    495,    968 

McWilliams  v.   Willis 134,   142 

McVeigh    v.  .  Howard 546 


National  Fire  Ins.  Co.  v.  Cat- 

lin    76 

Nat.  Valley  Bank  v.  Hancock.     58 

Nease   v.    Capehart 516 

Neale  v.  Utz 72,  294 

Neblett  v.   Shackleton 804 

Neely   v.   Jones 425-427,   646 

Neflf  v.  Ryman 198 

Neff  v.  Wooding 622 

Neill  v.  Produce  Co 700 

Nelms   v.    Mississippi    563 

Nelson  v.  C.  &  O.  R.  Co... 69,  348 

Nelson  v.   Webster 636 

Nevie  &  Cook's  Case 866 

Nevil  v.  Soper 966,  967 

New  if.   Bass 35 

Newberger    v.    Wells 409 

Newberry    Land    Co.    v.    New- 
berry, 

50,    51,    108,    109,    132,    138,    351 

Newcombe  -v.  Wood 566 

Newman  v.    Kettell    (Mass.)..    382 
New  Orleans,  etc.,  Packet  Co. 

v.    James 315 

Newport    News    Co.    v.    Beau- 

meister    510,  951 

Newport  News  Co.  v.   Bickford, 

171,    175,    177,    449,    572,   759 
Newport  News,  etc.,  R.  Co.  v. 

Bradford    508,    529 

Newport  News  R.  Co.  r.  Mc- 
Cormick         587 

Newport    News   v.    Nicolopou- 

los    362,    554,   556,   766 

New      River      Min.       Co.       v. 

Painter 271,  272,  326,  402,  988 

New     River     Mineral    Co.     v. 
Roanoke    Coal    &    Coke    Co.  166 

Newton  v.   Stubbs 975 

Newton  v.   Weaver 236 

N.  Y.,  etc.,  Ins.  Co.  v.  Banks..   307 
N.   Y.,   etc.,   Ins.   Co.  v.  Talia- 

ferro    504 

N.  Y.,  etc.,  R.  Co.  v.  Thomas, 

503,  504,  761 


CASES  CITED 


LXV 


[References 

Nicholas   v.    Com 505,  565 

Nichol  v.  Wilton 996 

Nichols  v.   Campbell 432,  580 

Nichols   v.    Culver 820 

Nicholson  v.  Gloucester  Char- 
ity   School 752 

Nicholson   v.    Simpson 875 

Nixdorf  v.   Blount 606 

Noel  v.   Noel 272,  396 

Norfolk   &   O.   V.    Ry.    Co.   v. 

Turnpike    Co 327 

Norfolk  Ry.  &  L.  Co.  v.  Wil- 

liar     68 

Norfolk  v.  Johnakin..478,  517,  564 

Norfolk,  etc.,  Co.  v.  Adamson.  761 

N.  &  W.  Ry.  Co.  v.  Ampey...  335 
Norfolk  &  W.  R.  Co.  v.  Carr, 

543,  569 

N.  &  W.  R.  Co.  v.  Carter 602 

N.  &  W.  v.  Clark 41 

Norfolk  &  W.   R.   Co.  v.   Cof- 

fey 356,  493,  498 

N.  &  W.  R.  Co.  v.  Com 701 

Norfolk  &  W.  R.  Co.  v.  Crowe.  490 
Norfolk  &  W.  R.  Co.  v.  Crull, 

59,  285 

N.  &  W.  Ry.  Co.  v.  Denny...  950 
Norfolk,  etc.,  R.  Co.  v.  Dough- 
erty      76 

Norfolk  &  W.  R.  v.  Duke 770 

Norfolk  &  W.  R.  Co.  v.  Dunn- 

away 497,    760,  767 

Norfolk,  etc.,  Co.  v.  Ellington.  70 
Norfolk  &  W.  R.  Co.  v.   Gee, 

346,  765,  962 
Norfolk,    etc.,    R.    Co.   v.    Har- 

man 491,    492,    528,  530 

N.  &  W.  R.  Co.  v.   Howison, 

822,    823,    824,  828 
Norfolk     &     W.     R.     Co.     v. 

Holmes    494 

N.   &  W.   Ry.   Co.  v.   Marpole.  505 
Norfolk  &  W.  R.  Co.  v.  Mar- 
shall      497 

N  &W.  Ry.  Co.  v.  Mills... 29,  30,  505 


are  to  pages.] 

Norfolk   &  W.  R.  Co.  v.  Mundy.  331 
N.  &  W.  Ry.  Co.  v.  Neeley, 

541,    544,    569 
Norfolk  &  W.   R.  Co.  v.   Per- 

row    759 

N.  &  W.  Ry.  Co.  v.  Potter...   747 
N.  &  W.  R.  Co.  v.  Poole..500,  508 

N.  &  W.  R.  Co.  v.  Read 59 

N.  &  W.  R.  Co.  v.  Rhodes...   521 
Norfolk     &     W.     R.     Co.     v. 

Scruggs    365,    765 

N.   &   W.  v.   Shott 461,   514,   543 

N.  &  W.  Ry.  Co.  v.  Spears, 

466,    468 
Norfolk  &  W.   R.   Co.  v.   Ste- 

gall    364,    765 

Norfolk  &  C.  R.  Co.  v.  Suffolk 

Lumber    Co 113 

Norfolk,  etc.,  R.  Co.  v.  Suffolk 

R.    Co 943 

Norfolk  &  Western  R.  Co.  v. 

Sutherland 293,    326,    349,    490 

Norfolk  &  W.   R.  Co.  v.  Wil- 
kinson      -. 771 

N.   &  W.   R.   Co.   v.  -  Wysor, 

154,  358,  3-63,  571 
North  Pac.  R.  Co.  v.  Slaght.  365 
Norton  Coal  Co.  v.  Murphy..  486 

Nottingham  v.   Ackiss 79 

Nowlan    v.    Geddes 983 

O.  A.  &  M.  R.  Co.  v.  Miles..    356 

Nulton  v.  Isaacs.. 305,  306 

Nutter   v.    Sydenstricker 129 

O'Brien   v.    Stephens, 

695,   697,   717,  727 

Deters  v.  Knights  of  Honor...    600 
Offterdinger  v.  Ford.. 680,  709,  710 

Ogg  v.    Murdock 729 

Oglethrope  v.    Hyde 959,  960 

Olinger  v.   Shepherd 188,  190 

Omohundro  v.   Omohundro...   382 

Oney  v.   Clendennin 537 

Oppenheim   v.    Myers, 

614,  787,  789,  790,  801 
Orange,   etc.,   R.    Co.  v.   Mills.  491 


LXVI 


CASES   CITED 


[References  are  to  pages.] 


Orr   v.    Pennington 759 

Osborne    v.    Big     Stone     Gap 

Colliery    Co 752,    821 

Osway  v.   Bristow 936 

Oswego  v.   Traveller   Ins.   Co.  518 
Overton  Bridge  Co.  v.  Means.  634 

Owens  v.   Geiger 951 

Owsley  v.  Bank 442 

Pace  v.   Moorman 829 

Page    v.    Clopton 515 

Pairo  v.  Bethell 814,  815,  830 

Palmer    v.    Elkins 857 

Palmer   v.    Lawson 950 

Pannill  v.   Coles 191,  744 

Park  v.  McCauley 628,  660,  663 

Park  L.   &  I.  Co.  v.   Lane, 

299,    300,    324 

Parker  v.  McCoy 307 

Parker  v.   Meek 229 

Parker  v.  Pitts 184 

Parker    v.    Stroude 382 

Parks    v.    Middleton 953 

Parks    v.    Morris 122 

Parmalee    v.    Simpson 660 

Partridge  v.  Strange 948,  961 

Parsons   v.    Harper 472 

Parsons    v.    McCracken 395 

Pasteur  v.   Parker 146 

Patton    v.    Moore 640 

Paul  v.  Va 314 

Payne  v.  Grant 142,  143 

Payne   v.   Tancil 250,   461 

Peabody   Ins.   Co.  v.   Wilson, 

487,  493,  498 

Peale  v.   Grossman 431 

Peasley  v.   Boatwright 82,   95 

Peck  v.  Chambers 325 

Peirce    v.    Grice 5 

Pembiva   Consol.    Silver   Min., 
etc.,   Co.  v.   Pennsylvania...   315 

Pendleton    v.    Smith 291 

Pennington  v.  Gillespie 996 

Pennoyer  v.    Neff, 

302,   303,  304,   307,  319,   619 


Pensocola    Tel.    Co.    v.    West. 

Union  Tel.    Co 315 

Penn.  Foundry  v.  Probst 962 

Penn.  Iron  Co.  v.  TVigg  Co. .  .      72 

Penn.   R.  Co.  v.  Smith 143, 

144,    154,    155,    347,    363,    367,  765 

People    v.    Alton 507 

People  v.  Olcott 478 

People   v.    Wemple 315 

Peoria    F.    &    M.    Ins.    Co.    v. 

Hall     378 

Perkins  v.    Seigfried 68,   388 

Perry   v.    Bailey 562 

Peters    v.    Butler 678 

Petticolas    v.     City     of     Rich- 
mond    19,  56 

Pettit    v.    Cowherd 190 

Petty    v.    Frick 722 

Pettyjohn   v.    Bank 508 

Peyson  v.   Myers 431 

Peyton   v.    Harman 81,    107 

Phaup  v.   Stratton 99 

Phelps   v.    Seely 17 

Phillips      Schneider      Brewing 

Co.   v.  Amer.   Ice   Co 557 

Philip  Carey  Man.  Co.  v.  Wat- 
son         277 

Philips    v.    Martiney 242 

Phillips  v.  Portsmouth 58,  443 

Phoebus  v.   Manhattan   Club...   430 
Phoenix  Ins.   Co.  v.   Doster...   506 

Pidgeon   v.    Williams 392 

Pike    v.    Eyn 974 

Pillow  v.   Southwest  Va.   Imp. 

Co 198,    474 

Pindall  v.  Northwestern  Bank.  428 
Pinney  v.   Prov.   Loan   Co., 

312,   314,   317 

Pitt   v.    Russell 939 

Pitts   Sons    Mfg.   Co.  v.   Com- 
mercial   Nat.    Bank 984 

Pittsburg  R.  Co.  r.  Montgom- 
ery         532 

Platt    v.    Hill 948 

Pleasants   v.    Lewis 651 


CASES  CITED 


LXVII 


[References  are  to  pages.] 


Plosket  v.   Beeby 977 

Poage   v.   Bell 210 

Pocahontas    Coal    Co.   v.    Wil- 
liams        493 

Poe   v.   Marion   Mach.   Wks., 

784,  785 

Poindexter  v.   May 3 

Poindexter  v.  Wilton 108 

Poling    v.    Flanagan 703 

Poling  v.   Mattox, 

113,    115,    335,    350 
Pollard  v.  Amer.  Stone  Co...   276 

Pollard   v.    Lumpkin 28 

Pollard  v.   Lyon 248 

Pope    v.    Skinner 866 

Pope   v.   Tilman 922 

Pope  v.  Transparent  Ice  Co...   430 

Porter  v.   Gray 931 

Porter   v.   Young 57 

Porterfield  v.   Com 540 

Portsmouth    Gas    Co.    v.    San- 
ford     706 

Portsmouth  v.   Norfolk 30 

Portsmouth   Oil   Co.  v.   Oliver 

Ref.     Co 590 

Portsmouth     Refining    Co.     v. 

Oliver  Refining  Co 128,  341 

Portsmouth   Street  Ry.   Co.  v. 

Peed    170,   585 

Post   v.    Carr 277 

Postlewaite  v.  Wise 145 

Powdick  v.  Lyon 987 

Powell   v.    Fullerton 983 

Powell  v.  Tarry 777 

Powell   v.    White 106 

Power  v.    Ivie 549,   556 

Powers  v.  Carter  Coal  Co....   738 
Powers  v.  Cook..  867,  868,  977,  978 

Poynter   v.    Poynter 969 

Prentis  v.  Com 295 

Preston   v.    Kindrick 305,    325 

Preston    v.     Salem      Improve- 
ment  Company, 

168,    174,    175,    181 


Price  v.   Fletcher... 995,   996 

Price  v.  Marks...  152,  153,  154,  267 

Price  v.  Smith 741,  744 

Price  v.   Thrash 640 

Price    v.    Wall 606 

Priddle  &  Napper's  Case.. 866,  867 
Prison  Association  v.  Ashby.  741 
Proudfoot  v.  Clevenger*.  .  .493,  497 

Prunty  v.   Mitchell 75 

Pryor   v.    White 832 

Pulaski  Coal  Co.  v.  Gibboney.     60 

Pulliam  v.  Aler 695,   717,   722 

Pullin    v.    Nicholas 971 

Purcell    v.    Bradley 968 

Purcell    v.    McCleary 755 

Puryear    v.    Taylor 714 

Quarrier   v.    Quarrier 413 

Radford  v.   Fowlkes 388 

Railroad  Company  v.  Lafferty, 

136,  137 

Rader  v.   Adamson 325 

Railroad   Co.   v.   Koontz 680 

Ralston  v.   Weston 381 

Rama  Chitty  v.  Hume.1 906 

Ramsburg    v.    Kline 325 

Rand  v.    Com 551,   552,   556 

Ratcliffe    v.    Anderson 547 

Rathbon  v.   Ranch 191,  744 

Raub  v.   Otterback, 

272,  296,  304,  707 

Read  v.  Brockman 591>  1004 

Read's   Case 561,  761 

Read  v.  Mississippi  County...   547 

Redford  v.   Clarke 206,  893 

Reed    &    McCormick   v.    Gold, 

171,    177,   474,   482 

Reed  v.   Union   Bank 799 

Reedy   v.    Purdy 228 

Rees   v.    Bank 266 

Reese  V.    Bates 335,   898 

Reno's  Ex'or  v.  Davis  &  wife.  755 
Reusens  v.  Lawson, 

196,    205,    381,    394,    504 
Reynolds  v.   Cook 194,   199 


IvXVIII 


CASES  CITED 


[References  are  to  pages.] 


Reynolds  v.  Lumber  Co 634 

Reynolds    v.    Reynolds... 

Rex    v.    Home 

Rex  v.   Morley 


..  20 

..  251 

..  972 

Rhea  v.  Preston.  .647,  653,  658,  660 
Rhule  v.  Seaboard  Air  Line  R. 

Co 198,    493,  748 

Rhymer    v.    Hawkins 748 

Rice    v.    Shute 65 

Rice  v.  White 384 

Richard  v.   Hodges 957 

Richards   v.    Com 553,  556 

Richardson    v.    Hoskins    Lum- 
ber   Co 707 

Richardson   v.    Mayor   of    Ox- 
ford  863,  866 

Richardson  v.   Planters'   Bank.  471 

Richardson   v.    Woodward....  790 
Richlands    Flint    Glass    Co.    v. 

Hiltebeitel 819,  821 

Richmond    v.    Barry 489 

Richmond   v.    Leaker 600,  601 

Richmond  v.  Sitterding 402 

Richmond  '  v.    Wood 600 

Rich.  v.  Woolley 941 

Richmond,  etc.,  Co.  v.  Allen..  593 
Richmond,  etc.,  R.  Co.  v.  An- 
derson      491 

Richmond    City    Railroad    Co. 

v.    Johnson 97,  432 

Richmond,     etc.,     R.     Co.     v. 

Moore    491 

Richmond,    etc.,    R.    Co.   v.    N. 

Y.,   etc.,   R.   Co 311 

Richmond     &     D.     R.     Co.     v. 

Medley 541,  560 

Richmond  Granite  Co.  v.  Bai- 
ley   503 

Richmond    Ice    Co.    v.    Crystal 

Ice  Co '...  15 

Richmond     Loco.      Works     v. 

Ford     601 

Richmond    Passenger    Co.     v. 

Allen         504 


Rich.  Ry.  Co.  v.  Bowles, 


67,    68,  585 
362 

.    585 


Rich.  R.  Co.  v.  Scott 

Rich.  Ry.  Co.  v.  West.... 
Richmond  Spike  Co.  v.   Ches- 
terfield Coal  Co 587 

Richmond     Traction      Co.     v. 

Clarke    511 

Richmond     Traction      Co.     v. 

Hildebrand     503 

Ricketts  v.  C.  &  O.  R.  Co 529 

Rickett  v.   Rickett 557 

Rider  v.   Smith 937,   962 

Riddle  v.  Core...  114,  492,  493,  497 

Riddle   v.    McGinnis 407 

Riggan    v.    Riggan 808 

Riggs   v.    Bullingham 963 

Riley  v.   Jarvis 27,   31,   98 

Riley  v.   Riley 130 

Rinehard   v.    Baker 671 

Ring   v.    Roxborough 920 

Ringgold  v.   Haron 598 

Rison   v.   Moon... 26,  '819,   829,   830 

Ritchie    v.    Holbrook 563 

Rittenhouse    v.    Harman 692 

Rivers   v.    Griffith 925 

Riverside   Cotton   Mills  v.  La- 

nier 76,   345,  347 

Riverside    Co.    v.    Husted 138 

Riverview   Land   Co.  v.   Dance  391 
Roanoke  L.   &  I.   Co.  v.   Karn 
&  Hickson, 

513,   557,   822,   823,   824 
Roanoke  Ry.  Co.  v.  Young. . .   754 

Roberts    v.    Burns 694 

Roberts  v.   Cocke 546,  547 

Roberts   v.   Mariett 989 

Robertson  v.  Hoge 707 

Robinett  v.    Mitchell 615,   632 

Robinson  v.  Allen 35 

Robinson    v.    Bass 415 

Robinson   v.    Burks 149 

Robinson    v.    Welty, 

118,  120,  122,  130,  138,  141,  143 
Rochester    Ins.    Co.    v.    Monu- 
mental Association 157,  490 


CASES    CITED 
[References  are  to  pages.] 


LXIX 


Rocky    Mount    Trust     Co.     v. 

Price 177,    181 

Roe    v.    Crutchfield 549 

Rogers    v.    Corrothers 28 

Rohr  v.   Davis 488,  489 

Rolland  v.   Batcheldor 249,   487 

Rollo  v.   Ins.    Co 701 

Roots  v.   Salt  Co 397,  415 

Rose  v.   Sharpless 787 

Rose   v.    Standen 968 

Rosenbaum  v.    Seddon. .......  770 

Rosenbaums  v.  Weeden,  John- 
son  &  Co 500,   501 

Rosenberg    v.    Jett 790 

Ross   v.    Overton 15 

Ross   v.   Gill 599 

Ross  v.  Milne 50,  108,  573,  574 

Rossett    v.    Gardner 467 

Rowan  v.  Chenoneth.  .391,  404,  431 

Rowan  v.  Givens 356 

Rowe   v.    Bentley 384,   386 

Rowe  v.    Hardy 323,   547,   648 

Rowe   v.    Roach 926 

Rowe  v.   Tutte 985 

Rowland  v.   Rowland 754 

Rowles   v.   Rusty 898 

Ruble  v.  Turner 18 

Rucker   v.    Harrison 652 

Rudd  v.  Richmond,  etc.,  R.  Co.  491 

Ruffin   v.    Call 265 

Runkle   v.    Runkle 215 

Russell     Creek    Coal      Co.     v. 

Wells    503.    1022 

Russell  z\   Louisville   &  N.   R. 

Co 79,    89,     90 

Sabine    v.    Johnstone 979 

Sade    v.    Drake 1006 

St.    Clair   v.    Cox 319 

St.  John  z'.  St.  John 950 

St.  Louis  R.  Co.  r.   Holbrook.     63 
St.  Louis  &  Sante  Fe  R.  Co.  v. 

Wallace     380 

Sammons   v.    Hawvers 527 

Sandheger    v.    Hosey 694 

Sands   z:    Stagg 401,   759,  828 


Sandusky  v..  Gas  Co 128,  148 

Sandy"  v.    Randall 390 

Sanger  v.  Ches.  &  O.  R.  Co...  745 

Sangston    v.    Bossette 308 

Sangster  v.  Com 122,  729 

San  Juan  v.  St.  Johns  Gas  Co.  20 

Sargeant  v.   Denby 816 

Saunders   v.    Baldwin 237 

Saunders  v.   Bank 175,  177,  770 

Saunder's   Case 992 

Saunders  v.   Hussey 937 

Saunders  v.  Lipscomb 292 

Savage    v.    Hawkins 928 

Savage  v.  People 680 

Savings     Bank     v.     Powhatan 

Clay   Co 379,   409,  828 

Sawyer  v.  Corse 533,  534 

Sayre  v.   Minns 882,   884,  944 

Scammon  v.   Kimball 442 

Scates  v.  Wilson 394 

Schauble  v.   Schaultz 394 

Schalfield   v.    Palmer 163,  180 

Schroeder    v.    Young 420 

Schrieber   v.    Citizens    Bank, 

822,  823,  824,  826 

Schumpert  v.  So.  Ry.  Co 60 

Schwalm    v.    Beardsley 503 

Scilly   v.    Dally 929 

Scott    -v.    Boyd 464 

Scott    v.    Cheatham 805 

Scott  v.    Neeley 387 

Scott  v.  Shelor...233,  234,  238,  239 

Scott  i'.   Shepherd 226 

Scroggs    v.    Hill 113 

Seaboard  R.  Co.  v.   Hickey...  504 

Seaboard  R.  Co.  v.  Vaughn...  510 

Searl   v.    Bunnion 929,  936 

Seas  &  McVitty  v.  Merriman.  163 
Security    Loan    Co.    v.    Fields, 

146,   169,   170,   179,  180 

Segouine   v.    Auditor 300 

Seig  v.  Accord 415 

Selby   v.    Bardons 856 

Selden   v.    Williams 455,  456 

Sellers  v.   Mann. .                        .  537 


LXX 


CASES   CITED 


[References  are  to  pages.] 


Sellers    v.    Reed 744 

Settlemier   v.    Sullivan .' . .   299 

Seward  &  Co.  v.  Miller. .  .700,  713 
Sexton  v.   Aultman, 

409,    442,    444,    445 

Sexton  v.  Holmes 143 

Seymour    v.    Goodrich 20 

Shackleford   v.    Beck 819,  821 

Shadrack's     Admr.     v.     Wool- 
fork     292 

Shanklin    v.    Crisamore 433 

Sharon  v.  Tucker 198,  380,  407 

Sharp  v.   Shenandoah  Furnace 

Co 197 

Shaver   v.    White 641 

Shaw  v.   Tobias 354 

Shearer  v.  Taylor 569 

Sheers  v.  Brooks 952 

Sheff  v.   Huntington 544 

Shelton    v.    Cocke 415 

Shenandoah   R.   Co.  v.   Ashby.  323 
Shenandoah  R.  Co.  v.  Miller..    823 
Shenandoah  V.  R.  Co.  v.  Grif- 
fith     699,  713 

Sherland   v.    Heaton 973 

Sherman  v.  Shaver 646 

Sheppard    v.    Peabody 338 

Shepherd    v.    Thompson, 

397,    413,    414,    417 

Shields    v.    Com 591 

Shields  v.   Mahoney 660 

Shifflet    v.    Com 551 

Shiflett  v.    Dowell 204 

Shiflett    v.     Orange     Humane 

Society 452,    454,    455 

Shipman    v.    Fletcher 738 

Shreffler   v.    Nadelhoffer 554 

Shum  v.   Farrington 955 

Simmons   v.    Lyles 636 

Simmons   v.    Simmons 723 

Simmons  v.  Southern  R.  Co..   491 

Simmons    v.    Thomasson 779 

Simmons    v.    Trumbo 433 

Sims    v.    Alderson 89 

Sims   v.   Tyrer 693,   733 


Sinclair  v.    Young 776 

Singer   Mfg.    Co.   v.    Bryant, 

60,  233,  234,  236,  239,  240,  753 

Sir  Francis  Leke's  Case 891 

Sir  Ralph   Bovy's  Case 950 

Sipe   v.   Taylor 430 

Slade  v.  Drake 970 

Slade  v.    Dowland 976 

Slaughter  v.   Green 534 

Slingluff  v.   Collins, 

323,  324,  619,  648,  649,  671 

Slocum  v.   Compton 538 

Smart  v.   Baugh 407 

Smiley  v.  Provident  Trust  Co.  744 

Smith    v.    Ames 312 

Smith  v.   Blackwell 35,  833 

Smith    v.    Brown 390,    407 

Smith   v.    Chilton 304 

Smith   v.    Downey 699 

Smith   v.    Feverell 951 

Smith   v.    Henry   Co 351 

Smith   v.    Hutchinson 407 

Smith  v.   Ins.   Co 380,  398 

Smith     v.      Kanawha     County 

Court    341 

Smith  v.   Lloyd.. 353,  431,   582,  591 

Smith    v.    Moore 751 

Smith  v.    Packard 136,   137,   538 

Smith    v.    Pattie 415,    416 

Smith    -v.    Powell 738 

Smith  v.   Smith 31,   714 

Smith   v.   Townsend 356 

Smith  v.  Triplett 649 

Smith  v.   Wunderlich 228 

Smith   v.    Yeomans 1006 

Smith    v.    Zumbro 389 

Smithson   v.    Briggs, 

203,  265,  276,  299,   300 

Snavely  v.   Harkrader 625,   670 

Snooks    v.    Wingfield 516 

Solenberger   v.    Strickler 398 

Sommers  v.   Allen 692,   697 

Southall    v.    Exchange     Bank, 

267,  598 
So.   Ex.   Co.  v.  Jacobs 274 


CASES   CITED 


LXXI 


[References 

Southern   Express   Co.   v.   Mc- 
Veigh         154 

So.    Ry.    Co.    v.    Blanford, 

335,    350,    511 

So.   R.   Co.  v.   Clarke 569 

Southern  Ry.  Co.  v.  Cooper..   482 

Southern  R.  Co.  v.  Foster 70 

Southern   R.  Co.  v.   Glenn....    755 
So.    R.    Co.   v.    Hansbrough, 

571,  766 

South.  Ry.  Co.  v.  Hill 48,  742 

Southern    Ry.    Co.   v.    Oliver, 

503,    506,    560 

So.  Ry.  Co.  v.  Simmons. ..  .69, 
250,    335,    350,    530,    771,    893,    894 

So.  Ry.  Co.  v.  Smith 543,  544 

S.   R.   Co.  v.  Wiley 490 

So.   R.   Co.  v.  Willcox, 

143,   973,   993 

South    Roanoke    Land    Co.  v. 

Roberts    493 

S.  V.  R.  R.  Co.  v.  Miller.. 821,  822 
S.    &  W.    R.    Co.   v.   Common- 
wealth     348,  771 

Southside   R.   Co.  v.   Daniel, 

357,    358 

Spangler    v.    Booze 235 

Spence   v.    Repass 642,   644,   700 

Spencer  v.  Field 153,  154,  338 

Spencer   v.    Flanary, 

389,  405,   612,   659 
Spencer  v.    Pilcher. .  .154,   155,   652 

Spengler  v.   Davy 720,   729,   730 

Spiker   v.    Borer 973 

Spiller   v.    Wells 828 

Spilman   v.    Gilpin 466 

Spragins  v.  West  Va.,  etc.,  Co., 

297,    322 

Sprinkel   v.    Rosenheim 13 

Spurgeon's    Case    472 

Stahl   v.    Grover 228,    229 

Standard    Peanut    Co.    v.    Wil- 
son      525 

Stansburg    v.    State 413 


are  to  pages.] 

Standard  S.  Co.  v.  Gunter 20 

Starke    v.    Scott 680 

Starr  v.   U.   S 508 

State    v.    Clark 510 

State  v.   Cobbs 509 

State  v.   Brobston 442 

State  v.   Hays 76S 

State   v.    Huffman 510 

State    v.    Matthews 783 

State  v.   Wilcox 564 

State  v.  Wood  Co.  Ct 776 

State   Trust    Co.   v.    Sheldon..   420 

Stanton  v.  Kensey 344,  366 

Staunton  v.   Stout 744 

Staunton  Bldg.  Ass'n  v.  Haden, 

290,    297,    298,    322,    323,    326,    619 
Staunton    Tel.     Co.    v.    Buch- 
anan     60,   874 

Stearns  v.   Harman 207 

Stearns     v.     Richmond     Paper 

Co 73,  46S 

Steamboat   Charlotte  v*  Ham- 
mond        831 

Steele  &  Co.  v.  Brown 641 

Steigleder  v.   Allen 822 

Steinman  v.  Jessee 321 

Steinman  v.   Vicars 197,   200 

Stephens  v.  White 145,  483 

Stephenson    v.    South.    R.    Co.  961 
Stephenson  v.  Wallace. ..  .517,  559 

Steptoe    v.    Harvey 527 

Sterling  Organ   Co.  v.   House.  457 
Stiles  -v.  Laurel  Fork  Oil  Co., 

^88,   416 
Stimmel   v.    Benthal, 

177,    178,    334,   336,   440,   459 
Stockton  v.  Baltimore,  etc.,  R. 

Co 315 

Ex  parte    Stockton 315 

Stone    v.    Wilson 649 

Stoneburner  v.  Motley 130 

Storrs  v.  Frick 188 

Story   v.    Irvington 431 

Stout  v.  Vance 402 

Stowell  v-  Lord  Zouch 950 


LXXII 


CASES  CITED 


[References  are  to  pages.] 


Strange   v.    Floyd 766 

Strayer    v.    Long 805 

Strange  v.   Strange 805 

Straus  v.  Bodeker 607 

Street    v.    Hopkinson 983,984 

Stroud  v.  Lady  Gerrard 974 

Strother  v.   Strother 65,   360 

Stryker   v.   Cassidy 813 

Stultz  v.  Dickey 228 

Stultz   v.    Pratt 275 

Stuart  v.  James  River,  etc.,  Co.  108 

Stuart  v.   Peyton 770 

Stuart    v.    Simpson 598 

Stuart  v.   Valley   Ry.   Co 753 

Sublett  v.  Wood 719,  720 

Suffolk   v.    Parker 472 

Sulpher  Mines   Co.  v.   Phoenix 

Ins.    Co 771 

Sulphur  Mines  Co.  v.  Thomp- 
son         196 

Summerson  v.   Donovan 65 

Sun  Life  ^fcsurance  Co.  v.  Bai- 
ley       249,   511 

Supervisors  v.   Dunn, 

98,  113,  115,  169,  174,  176,  292 

Supervisors  v.  Gorrell 774 

Sutherland   v.    Bank 325 

Sutherland    v.    Emswiller 203 

Sutton    v.    Burruss, 

413,    414,    421,    422 

Sutton    v.    Marye 627,  670 

Swann    v.    Summers 663 

Swann   v.    Washington    &   Co., 

1020 
Sweeney  v.  Baker... 334,  558,  1020 

Swift   v.    Fue 554 

Swift  &  Co.  v.  Wood 165 

Switzer  v.  Noffsinger.  .410-415,  416 

Syme    v.    Griffin 276 

Talbot   v.    Hopewood 983,    984 

Taliaferro   v.    Gatewood.  .  .483,  493 
Taney    v.    Woodmansee. .  .625,  670 

Tapscott   v.    Cobbs 198 

Tate    v.    Bank 590 

Tate   v.    Winfree..  ..390,  398 


Tatem    v.    Perient 891 

Taylor  v.  B.  &  P.  R.  Co... 494,  507 
Taylor  v.  Ches.  &  O.  R.  Co...   492 

Taylor   v.    Eastwood 935 

Taylor  v.    Forbes 107,  396 

Taylor   v.    Mallory 517 

Taylor    v.    Needham 870 

Taylor  v.   Netherwood, 

819,    822,    829,  830 

Taylor    v.    Rainbow 226 

Taylor  v.   Sutherlin-Meade  Co., 

151,   162,   367,   694,  696 

Tax   Title    Co.   v.    Denoon 207 

Teal  77.   Ohio   R.   Co 491,  497 

Templeman    v.    Pugh 378,403 

Tench    v.    Gray 164,  169 

Tennant's  Executor  v.   Gray..     96 

Tennant    v.    Fretts 619 

Tennessee    v.    Condon 754 

Terry    v.    Anderson 378,379 

Terry    v.    Johnson 953 

Terry    v.    McClung 37 

Teter   v.   Teter 129 

Texas,    etc.,    R.    Co.    v.    John- 
son      63,  633 

The   King  v.   Bishop  of  Ches- 
ter      875,  921 

The   King  v.   Brereton 972 

The   King  v.   Bishop   of  Wor- 
cester      •. 862 

The  King  v.  Lyme  Regis. 948,  969 

The  King  v.   Stevens 968 

Thomas    v.    Heathorn 874 

Thompson    v.    Bank 383 

Thompson    v.    Butler 754 

Thompson's    Case    528 

Thompson    v.    Norfolk    &    P. 

R.    Co 761 

Thompson   v.    Thompson 120 

Thompson  v.   Whitman. .  .103,  305 
Thompson    v.    Whittaker, 

382,     385,  409 

Thornton    v.    Adams 968 

Thornton    v.    Com....  521,    525,996 
Thrale  v.   Bishop   of  London..  863 


CASES  CITED 


LXXIII 


[References 

Thurman   v.    Morgan 306 

Tidball    v.    Bank 548 

Tidewater      Quarry      Co.      r. 

Scott, 

121,   123,  437,  438,  600,  602 

Tiernan   v.    Schley 718 

Tifft    v.    Tifft 973 

Timmerman    v.    Stanley 967 

Tingle   v.    Brison 723 

Tippling  v.  Johnson 885 

Title    Guaranty    &    Trust    Co. 

v.   Crane   Co 72 

Todd    v.    Daniel '. 755 

Tole's    Appeal 412 

Tolputt    v.    Wells 988 

Tomlins    v.    Earnshaw 924,999 

Tomlin    v.    Surface 971 

Tompkins    v.    Burgess 463 

Took  v.    Glascock 982 

Topping   v.    Fuge 1005 

Town    of    Hindsley   v.    Kettle 

River    R.    Co 313 

Townsend  v.  Norfolk,  etc.,  R. 

Co 329,  865 

Travis    v.    Peabody    Ins.    Co., 

467,  586 

Traer    v.    Clews 386 

Trevilian    v.    Guerrant 658 

Tribble    v.    Frame 228 

Trimble   v.    Covington    G.    Co.  724 

Triplett    v.    Micon 536 

Trout  r.  Va.   &  Tenn.  R.   Co., 

486,  489,  491 

Trueman    v.    Hurst 985 

Trump    v.    Tidewater 585 

Trust   Co.   v.    Price 102 

Trustee    Franklin    St.    Church 

f.    Davis, 

817,   820,   821,   832,  833 

Tunstall  v.   Withers 397 

Turnbull    v.    Claiborne 645 

Turnbull  v.  Thompson, 

295,   296,  619 

Turner  v.   Barrand 287,  308 

Turner    v.    Stewart..  27 


are  to  pages.] 

Turpin   v.   Sledd's   Ex'r 87 

Tutt   v.    Slaughter 490 

Tuvis   v.    Grandy 15 

Tyler  v.  Ches.   &  O.   R.   Co...   500 

Tyree   i\    Harrison 253 

Tyson  v.  Williamson. 454,  455,  456 
Union    Central    Life    Ins.    Co. 
v.  Pollard, 

169,  172,  179,  508,  516,  950 
Union  Pacific  Co.  v.  Wyler..  988 
Union  Steamship  Co.  v.  Not- 

tinghams    490 

Union     Stopper     Co.     v.     Mc- 

Gara    142,   143,   147,  996 

United  Moderns  v.  Rathbun..   767 

U.    S.    v.    Ball 539 

United    States    v.    Battiste 507 

United  States  v.  Bell  Tel.  Co.  310 

U.    S.   v.   Coolidge 478 

United   States  v.   Reid 561 

U.  S.  Fidelity  Co.  v.  Peebles.   776 

U.  S.  Oil  Co.  v.  Garland 291 

University    of   Va.    v.    Snyder, 

488,   489,   498,  823 
Upper     Appomattox      Co.     v. 

Hamilton    13 

Urton    v.    Hunter 399 

Usborne    v.    Stephenson.  .478,  599 
Valley    Mut.    Ins.    Co.   v.   Tee- 
wait    527 

Vanborn    v.    Freeman 229 

Vance   v.    McLaughlin 698 

Vance  v.  Vance.. 378,  379,  394,  399 

Vanderwerken    v.    Glenn 383 

Van   Stone   v.   Stillwell 735 

Vashon    v.    Barrett 386 

Vaughan    Mach.    Co.   v.    Stan- 
ton   Co 511 

Veale    v.    Warner 982 

Vere   v.    Smith 882,   883,  991 

Vicars    v.    Sayler 699,713 

Vincent    v.    Hurst 800 

Vinol   v.    Core... 233,   237,   238,  239 

Va.    Brewing   Co.   v.    Com 430 

Va.-Car.   Chem.  Co.  v.  Knight     70 


LXXIV 


CASES   CITED 


[References  are  to  pages.] 


Va.   Cedar  Works  v.  Dalea, 

362,  554,  766 

Va.  Coal  &  Iron  Co.  v.  Kelly  197 
Va.    Dev.    Co.    v.    Rich    Patch 

Iron    Co 519 

Va.  Fire,  etc.,  Ins.  Co.  v.  Buck, 

97,    156,    158,   343 
Va.  F.  &  M.  Ins.  Co.  v.  New 

York,     etc.,     Co 664,760 

Va.  F.  &  M.  Ins.  Co.  v.  Saun- 

ders    335,  882,  899,  988 

Va.  Fire  Ins.  Co.  v.  Vaughan, 

290,  322 
Va.    Hot    Springs    Co.    v.    Mc- 

Cray    389 

Va.    Iron    Co.   v.    Cranes    Nest 

Co 203 

Va.  Iron  Co.  v.   Kiser 467 

Va.    Midland    R.    Co.    v.    Bar- 

bour    196,  198 

Va.   Mining,  etc.,   Co.  v.   Hoo- 
ver        491 

Va.   N.   C.  Wheel   Co.  v.   Har- 
ris     341,  361 

Va.  &  So.  R.  Co.  v.  Hollings- 

worth    281 

Va.-Tenn.    Coal    Co.   v.    Fields  601 
Va.-Tenn.   C.   &  I.   Co.  v.  Mc- 
Clelland     793,    800,  803 

Voss    v.    King 5 

Vynior's    Case    952 

Wades   v.    Figgatt 13 

Waid    v.    Dixon 143 

Wait   v.    Essington 922 

Wakeford    v.    Trinkle 257 

Walker   v.    Com., 

625,    645,    649,    670,  671 

Walker    v.    Henry 134 

Walker  v.   N.   &  W.   Ry.   Co., 

121,  123 

Walker   v.    Supple 598 

Walker   v.    Tyler 381 

Wall   v.   Atwell 274,  276 

Wall  v.   N.   &  W.  R.   Co 634 

Wallace    v.    Baker..  95 


Wallen    v.    Wallen 510,770 

Wallos   v.    Savil 984 

Walmsley   v.    Lindenberger. .  .      54 

Walsingham's    Case    950 

Walters    v.    Mace 926 

Walters   v.    Hodges 858 

Walton    v.    Miller 59 

Van    Winkle   v.    Blackford. .  . .   416 

Ward  v.   Blunt's  Case 994 

Ward    v.    Churn 502 

Ward  v.  Johnston 115 

Ward  Lumber  Co.  v.  Hender- 
son-White   Mfg.    Co 314 

Ward  v.  Reasor 234 

Wardsworth    v.    Miller 649 

Ware    v.    Bldg.    Ass'n 746,750 

Ware    v.    Stephenson 494 

Waring    v.    Griffiths 935 

Warner    v.    Wainsford. .  .  .992,  994 

Warren    v.    Saunders 272,327 

Warren    v.    Wilson 230 

Wartman   v.    Yost 440 

Wash.      Luna      Park      Co.     v. 

Goodrich     540,  561 

Wash.   So.   Ry.  v.   Cheshire...   362 
Washington,    etc.,    R.    Co.    v. 

Lacey    503 

Washington,    etc.,    R.    Co.    v. 

Quayle    503 

Washington,    etc.,    R.    Co.    v. 

Taylor    765,  766 

Watterson   v.    Moore 569 

Watkins    v.    Hopkins 454 

Watkins   v.   Venable, 

48,    741,    755,    782,  783 
Watkins    v.    West    Wytheville 

Land    Co 452 

Watts   v.   N.   &   W.   Ry.    Co., 

504,    541,  560 

Wattles  v.   So.   Omaha  Co....     15 
Wats  v.   King  Cro.   Pac.   353..    873 

Watson   v.    Blackstone 47,  737 

Watson  v.  Reed 540 

Wayland    v.   Tucker 441 

Wayt  v.   Peck 641 


CASES   CITED 


LXXV 


[References  are  to  pages.] 


Webb    v.    Martin 985 

Webber    v.    Tivill 985 

Wedderburn's    Case    478 

Weeks    v.    Reach 983 

Wells    v.    Gallagher 953 

Weltale    v.    Glover 881 

Wetherill    v.    Howard 866 

Welton  v.    Boggs 410,  411 

Westmeyer    v.    Gallencamp. . .   308 
West  Chicago  R.  Co.  v.  Man- 
ning       541 

Western     Lunatic    Asylum    v. 

Miller    381 

Western      State      Hospital     v. 

General    Board    285 

W.    U.    Tel.    Co.    v.    Bright, 

91,   172,  173 

Western    Union     Tel.     Co.    v. 
Los   Angeles    Electric   Co...   947 

W.   U.  Tel.   Co.  v.   Powell 91 

West  Virginia,  etc.,   R.   Co.  v. 

Mclntire    107,  396 

Wettenhall    v.    Sherwin 973 

Wetherell    v.    Clerkson 963 

Whalen   v.    Gordon 402 

Wheatley  v.   Martin 22,  27,  30 

Wheeling   Gas    Co.   v.    Wheel- 
ing     30,  143 

Whiteacre   v.    Rector 797 

White   v.    Bldg.   Asso 751 

White  v.   Canadee. .  .  .145,  924,  999 

White'z/.    Cleaver 957,958 

White    v.    Murtland 229 

White   v.    Owen 801 

White    v.    Palmer 614 

White    v.    Toncray 513 

White    v.    White 304 

Whitehead     r.      Cape      Henry 

Syndicate    498,  777 

Whitehead  v.   Coleman 698 

Whiting      v.       Story      County 

(Iowa)    817 

Whitley  v.   Booker   Brick  Co., 

445,   600,   854 
Whitmore    r.    Karrick..  .    522 


Whitney  v.  Whitney 563 

Whittington  v.  Christian.  .483,  489 

Whitten  v.  Saunders 621 

Whitwell  v.  Bennett 926 

Wickes  v.  Baltimore 758 

Wicks  v.  Scull 613 

Wickham  v.  Green.. 260,  275,  401 
Wickham  v.  Richmond  Spike 

Co 4 

Wickham  v.  Turpin 530 

Wilburn  v.  Raines 38,  743 

Wilcox  v.  Servant  of  Skip- 

with  875 

Wilder  v.  Handy 973 

Wilkins  v.  Standard  Oil  Co...  347 

Wilkinson  v.  Hike 594 

Wilkinson  v.  Merrill 792,806 

Willard  v.  Worsham 108 

Williams  v.  Bruffy 736 

Williams  v.  Com 509,589 

Williams  v.  Ewart 569,  758 

Williams  v.  Fowler 950 

Williams  v.  Mathewson 351 

Williams  v.  Simpson 600 

Williams  v.  Watkins 615,803 

Williamson  v.  Bowie 714 

Williamson  v.  Gayle 441,  715 

Williamson  v.  Mingo  Co.  Ct.  780 

Williamson  v.  Payne 750 

Wilson  v.  Dawson 173 

Wilson  v.  Hobday 953 

Wilson  v.  Hundley 769 

Wilson  v.  Kemp 983 

Wilson  v.  Koontz 403 

Wilson  v.  Langhorne 606 

Wilson  v.  Mackreth 228 

Wilson  v.  McCormick 75 

Wilson  v.  Miller 391 

Wilson  v.  Mt.  Pleasant  Bank  366 
Wilson  v.  St.  Louis,  etc.,  R. 

Co 304 

Wilson  v.  Wilson 752,773 

Winchester  v.  Carroll 951 

Winchester,  etc.,  R.  Co.  v. 

Commonwealth    .  .    776 


LXXVI 


CASES  CITED 


[References  are  to  pages.] 


Winfree    v.    Bank 503 

Windsor    v.    McVeigh, 

305,    306,    321,  728 

Wingo    v.    Purdy 683 

Winston   v.    Francisco 143 

Winters  v.   Null 518 

Winters    v.    U.    S 755 

Wimbish   v.   Tailbois 961 

Wiscot's    Case    932 

Wise    v.    Com 467 

Wise  v.    Hogan 921 

Witherley    v.    Sarsfield 972 

Withers   v.    Carter 607,  611 

Withers   v.    Fuller 724 

Witten    v.    St.    Clair 198 

Wittick    v.    Traum 986 

Wolf   v.    Violett, 

106,  108,  347,  397,  412 
Womack  v.  Circle, 

231,  236,  500,  502,  517 
Wood  v.   Amer.    Nat'l   Bank..   601 

Wood  v.   Buddin 891 

Wood    v.    Com 102,    349,  535 

Wood   v.    Shepperd 23 

Wood   v.   Southern   R.    Co....   495 
Woodruff    v.    Zaban..  .    123 


Woodson  •  v.    Wood 415 

Wooten   v.    Bragg 182 

Woody    v.    Flournoy 143 

Woodyard    v.    Polsley 410 

Woodward   v.    Leavitt 562 

Woolaston    v.    Webb 963 

Worley  v.  Adams 767 

Worrell   v.    Kinnear 772 

Wray    v.    Davenport 793,795 

Wright   v.    Agelasto 511 

Wright's    Case    521 

Wright    v.    Clements 975,976 

Wright   v.    Collins 526 

Wright    v.     Smith 148 

Wyat   v.   Aland 966,    967,  968 

W'yman    v.    Wyman 815 

Wynne    v.    Newman 565 

Wynn  v.  Wyatt 722 

Yahoola  River  Co.  v.  Irby 228 

Yates    v.    Carlisle 995,996 

Young    v.    Hart 68 

Young   v.    King 518,  559 

Young  v.    Rudd 888 

Young    v.    Ruddle 888 

Zouch   &  Barnfield's   Case 971 

Zumbro    v.    Stump 369 


Errata 


Page     28  Line  6  from  top — for  "legal"   read  "illegal." 

Page  132  At   end   of  line   13   from   top — after   note    (50)    add   "There 

are,    however,    some    exceptions    to    this    rule." 
Page  158  At  end  of  note  60 — for  "sec.   198"  read  "sec.  197." 
Page  168  Lines  1  and  2  from  top — for  "returnable"   read  "given." 
Page  168  Strike   out  last   sentence   of   first  paragraph   and   note   15a. 
Page  202  Line   2   from   top — for   "defendant"    read   "plaintiff." 
Page  231  Line   1C   from  top — for  "malice"   read   "libel." 
Page  232  Line  14  from  the  bottom — for  "controversy"  read  "country." 
Page  253  Line  12  from  bottom — for  "three"   read  "two." 
Page  269  Line   8   from   top — strike   out   "other." 
Page  273  Line   7    from   bottom — for   "plaintiff"    read    "defendant." 
Page  288  Line    9    from    bottom — for    "Oct.    Rules"    read    "day    next 

term." 

Page  288  Line   10  from   bottom — for  "$500"   read   "$50." 
Page  326  Lines  3  and  5  from  top — after  "agent"  insert  "or  officer." 
Page  332  Line  5  from  top — strike  out  "not." 
Page  347  Note  42 — for  "sec.  3958"  read  "sec.  3258a";  also,  in  Code  of 

Virginia   Cited,  p.   xlv,   same   correction. 
Page  396  Note    89— for    "44    S.    E.    333"    read    "44    S.    E.    888;"    for 

"Shields"  read  "Shield;"  for  "112  Va.  -      — ,"  read  "111 

Va.    643." 

Page  426  Line  12  from  top — strike  out  "not." 

Page  431  Line  13  from  bottom,  last  word — for  "after"  read  "before." 
Page  579  Note   7— for   "205"   read   "265." 

Page  664  Line  7  from  bottom — for  "debtor"  read  "creditor." 
Page  673  Lines    3    and    4 — strike    out    "and    return." 
Page  708  Last   line — strike    out    "other." 
Page  718  Note    68,   line    1 — after    "sue"    insert    "out." 
Page  781  Note  34 — insert  "3  Code,  sec."  before  "3022." 
Page  901  Line  2  from  top — for  "like"  read  "lie." 
Page  921  Note '9 — after    "Hogan"    read    "(Cal.)    18    Pac.    784." 
Page  928  Line  3  from  top — for  "stories"  read  "stores." 
Page  956  Line  11   from  bottom — for  "plaintiff"   read   "defendant." 
Page  973  Line  3  from  top — for  "plea"  read  "complaint." 
Page  1013  Line  8  from  bottom — for  "respondent"  read  "respondeat." 


Common  Law  Pleading  and  Practice. 


CHAPTER  I. 
REDRESS  OF  PRIVATE  WRONGS — DISTRESS  FOR  RENT. 

§     1.  Self-defence — Recaption — Abatement   of   nuisance. 

§     2.  Distress. 

§     3.  Distress  for  taxes  and  officers'  fee  bills. 

§     4.  Distress   for   rent. 

§     5.  Interest  on  rent. 

§     6.  Limitation  of  time  to  distrain. 

§     7.  By  whom  distress  warrant  levied. 

§     8.  Irregularity  or  illegality  in  making  distress. 

§     9.  Disposition  of  property  levied  on. 

§  10.  Delivery  or   forthcoming  bond   and   proceedings   thereon. 

§  11.  What  property  may  be  distrained. 

§  12.  Redress  for  illegal  distress — At  common  law. 

§  13.  A  year's  rent  under  the  Virginia  statute. 

§  14.  Motion  on  delivery  bond — Proof. 

§  15.  Effect  of  general  covenants  to  repair. 

§   16.  Abatement  of  rent. 

§   1.    Self-defence — Recaption — Abatement  of  nuisance. 

As  stated  by  Blackstone,  all  private  wrongs,  or  civil  injuries, 
may  be  redressed  in  one  of  three  ways:  (1)  By  the  mere  act 
of  the  parties  themselves;  (2)  by  the  mere  act  or  operation  of 
the  law ;  (3 )  by  the  joint  act  of  the  parties  and  of  the  law,  'or  a 
civil  action.  Redress  by  act  of  the  parties  may  be  either:  (a) 
Fly  the  act  of  the  party  injured  alone,  or  (b)  by  the  joint  act  of 
both  parties. 

Redress  by  act  of  the  party  injured  alone  may  be  effected  (1) 
by  self-defence,   (2)  by  recaption  of  goods,  wife,  child  or  serv- 


XOTE. — References  to  the  Code,  unless  otherwise  stated,  are  to  the 
Code  of  Virginia  of  1904.  Other  references  are  as  follows:  To  the 
Code  of  West  Virginia  of  1906;  to  the  third  edition  of  Minor's  In- 
stitutes; and  to  the  second  edition  of  Andrew's  Stephen  on  Pleading. 


2  REDRESS  OF   PRIVATE   WRONGS — DISTRESS   FOR   RENT  §    2 

ant,  (3)  by  re-entry  upon  lands,  (4)  by  abatement  of  nuisance, 
and  (5)  by  distress.  If  one  is  in  a  place  where  he  has  a  right 
to  be,  and  is  doing  what  he  has  a  right  to  do,  in  a  lawful  manner, 
he  may  resist  any  assault  made  upon  him,  even  if  necessary  to 
the  extent  of  taking  his  assailant's  life,  provided  the  assailant 
apparently  threatens  life  or  great  bodily  harm.  The  same  right 
is  extended  to  persons  occupying  the  relationship  of  husband 
and  wife,  parent  and  child,  master  and  servant,  and  is  mutual 
and  reciprocal  between  them. 

So  also  if  one's  goods,  his  wife,  child  or  servant  have  been 
wrongfully  taken  from  him,  he  may  retake  them  when  found, 
provided  the  retaking  be  not  in  a  riotous  manner,  nor  attended 
with  a  breach  of  the  peace ;  and  if  one  has  been  wrongfully  de- 
prived of  the  possession  of  his  real  estate,  the  owner  may  re- 
enter  upon  his  land  provided  it  be  done  peaceably  and  without 
force. 

Whatever  unlawfully  annoys  or  does  damage  to  another  is 
a  nuisance  and  may  under  proper  conditions  be  abated.  Abate- 
ment is  simply  removing,  or  taking  away,  the  nuisance,  but  it 
must  not  be  done  riotously  nor  by  breach  of  the  peace.  If  the 
nuisance  be  one  of  commission  no  notice  is  required  before  re- 
moval, but  if  it  be  one  of  omission  notice  of  the  fact  that  it  is 
a  nuisance  should  generally  be  given,  except,  perhaps,  in  case  of 
overhanging  trees.  The  abatement  should  not  exceed  the  ne- 
cessities of  the  case — e.  g.,  a  whole  tree  should  not  be  cut  down 
simply  because  the  branches  create  a  nuisance. 

§    2.   Distress. 

Distress  is  the  taking  of  a  personal  chattel  out  of  the  posses- 
sion of  the  wrongdoer  into  the  custody  of  the  party  injured  to 
procure  a  satisfaction  for  the  wrong  committed.1  Distress  is 
generally  used  as  a  remedy  in  three  cases:  (a)  to  recover  dam- 
ages for  cattle,  damage  feasant;  (b)  to  enforce  the  collection 
of  taxes  and  officers'  fee  bills;  (c)  for  the  collection  of  rent. 

At  common  law,  every  man's  boundary  line  was  a  lawful 
fence,  and  if  cattle  strayed  upon  another's  land  the  owner  of  the 
cattle  was  liable  in  damages  for  the  injury.  In  many  of  the 

1.  3  Bl.  Com.  [6]. 


§    ^  DISTRESS  5 

states,  including  Virginia  and  West  Virginia,  it  has  been  held 
that  this  common-law  rule  does  not  apply,  and  it  has  also  been 
held  that  the  common-law  rule  is  inapplicable  to  the  public  lands 
of  the  United  States  Government.  The  reason  assigned  is  that 
it  was  not  adapted  to  the  nature  and  conditions  of  the  country 
at  the  time  of  its  settlement;  that  fencing  materials  were 
scarce,  that  there  was  a  vast  extent  of  land  not  occupied  or  cul- 
tivated, chiefly  valuable  for  pasturage,  and  that  the  public  in- 
terests would  be  best  subserved  by  requiring  each  landowner  to 
protect  his  crops  by  proper  enclosures.2  In  those  states  where 
the  common-law  rule  does  not  apply,  the  owner  of  the  land 
must  protect  his  crops  against  trespassing  cattle  by  a  lawful 
fence.  But  even  when  a  landowner  is  required  to  enclose  his 
land,  if  he  fails  to  do  it,  the  owners  of  cattle  have  no  right  to 
drive  their  cattle  on  the  uninclosed  land,  and  if  they  do  they  will 
be  liable  as  for  wilful  trespass.3  What  constitutes  a  lawful 
fence  is  usually  defined  by  statute.  In  the  absence  of  such  stat- 
ute, it  means  a  fence  adequate  to  keep  out  ordinary  animals  of 
the  particular  kind,  or  animals  not  given  to  breaking  through.  In 
Virginia,  the  Board  of  Supervisors  of  the  county  are  authorized, 
under  given  conditions,  to  adopt  the  common-law  rule  for  the 
county  or  any  portion  thereof,  or  to  declare  what  shall  be  a  law- 
ful fence,  as  to  any  or  all  animals  designated  in  the  statute,  not 
exceeding  the  requirements  of  the  general  law.4  At  common 
law,  cattle  damage  feasant,  that  is  doing  damage,  or  trespassing 
upon  land,  could  be  distrained  therefor.  They  were  simply 
taken  as  a  pledge  or  security  for  the  damage  done.  The  dis- 
trainor  could  not  work,  use,  or  sell  them,  but  could  only  hold 
them  as  a  security  for  the  damage  done,  and  in  the  meantime 
must  feed  and  otherwise  provide  for  them.  If  the  owner  proved 
obdurate,  the  distrainor  had  no  means  of  enforcing  his  demand, 
and  if  the  distress  was  irregularly  made,  the  distrainor  was  a 
trespasser  ab  initio.5  In  Virginia  trespassing  cattle  may  be  im- 
pounded, and  a  speedy  remedy  is  provided  by  a  warrant  before 

2.  Poindexter  v.  May,  98  Va.  143,  34  S.   E.  971;   Elaine  v.  Ches.   & 
O.  R.   Co.,  9  W.  Va.  253;   Buford  v.   Houtz,  133  U.  S.  320. 

3.  Poindexter  v.   May,  supra. 

4.  Code,    §    2048. 

5.  3   Bl.   Com.    [10]. 


REDRESS  OF  PRIVATE  WRONGS — DISTRESS  FOR  RENT     §§    3-4 

a  justice  of  the  peace  for  enforcing  the  demand  for  the  damage 
done.  For  a  second  or  any  subsequent  trespass  the  owner  of 
the  animal  is  liable  for  double  damages,  both  actual  and  puni- 
tive, recoverable  before  a  justice,  and  a  specific  lien  is  given  on 
the  animal  after  judgment  for  the  amount  of  such  damages.0 

§   3.  Distress  for  taxes  and  officers'  fee  bills. 

This  is  a  purely  statutory  remedy,  which  need  not  be  here  dis- 
cussed.Ca 


§   4.   Distress  for  rent. 

At  common  law  this  was  a  remedy  afforded  by  the  mere  act 
of  the  party  injured,  for  the  landlord,  or  his  private  servant 
(bailiff)  by  warrant  from  him,  made  the  levy.  In  Virginia,  West 
Virginia,  and  other  states  the  proceeding  to  recover  rent  by  dis- 
tress is  no  longer  a  remedy  afforded  by  the  mere  act  of  the 
party  injured  but  is  a  judicial  remedy,  one  afforded  by  the  joint 
act  of  the  party  injured  and  of  the  law,7  and  hence  would  not 
be  properly  discussed  in  this  connection,  but  is  here  inserted 
merely  for  the  sake  of  convenience. 

Rent  proper  is  defined  to  be  a  right  to  a  certain  profit  issuing 
periodically  out  of  lands  and  tenements  corporeal  in  retribution 
(or  return,  reditus)  for  the  land  that  passes.8  It  must  not  be 
supposed  from  this  definition  that  the  profit  must  issue  exclu- 
sively out  of  lands  and  tenements  corporeal.  There  are  many 
cases  where  personal  property  enters  very  largely  into  the  con- 
sideration of  the  price  agreed  to 'be  paid  and  yet  the  whole  is 
treated  as  rent.  It  is  not  within  the  purview  of  these  notes  to 
discuss  this  question,  but  many  of  the  authorities  are  collected 
and  discussed  in  the  opinion  of  the  court  in  the  case  cited  in  the 
margin.9  In  Virginia  rent  of  every  kind  may  be  recovered  by 
distress  or  action10  but  in  order  to  distrain,  the  rent  must  be  re- 

6.  Code,   §   2042. 

6a.  See   Code,   §§  622-626,  1044,  3518. 

7.  Wickham  v.   Richmond   Spike  Co.,   107   Va.   44,   57   S.   E.   647. 

8.  4    Min.    Inst.    124. 

9.  Wickham    v.    Richmond    Spike    Co.,    supra. 
10.  Code,   §  2787. 


§    4  DISTRESS  FOR  RENT  5 

served  by  contract.11  If  a  tenant  holds  over  with  the  consent  of 
the  landlord,  but  without  a  new  contract,  he  becomes  a  tenant 
from  year  to  year.  The  law  presumes  the  holding  to  be  upon 
the  terms  of  the  former  lease  so  far  as  they  are  applicable  to  the 
new  situation.12  But  the  rent  is  still  rent  reserved  by  contract 
implied  by  law,  and  may  be  distrained  for.13  An  agreement, 
however,  that  a  tenant  is  to  get  a  house  at  a  price  stated  in  the 
agreement  for  one  year,  and  to  have  the  preference  each  suc- 
ceeding year  is  not  a  tenancy  from  year  to  year,  such  as  will 
entitle  the  tenant  to  notice  to  quit  ;14  and  an  agreement  by  a 
tenant  that  he  will  surrender  possession  whenever  a  purchaser 
of  the  land  requires  it  makes  him  a  tenant  at  will  or  by  suffer- 
ance, and  not  from  year  to  year.15  Where  tenancy  is  from 
year  to  year,  neither  party  can  terminate  the  tenancy  without 
notice  to  the  opposite  party.  It  is  as  much  the  duty  of  a  tenant 
from  year  to  year  to  give  the  landlord  the  statutory  notice  of  his 
intention  to  quit  as  it  is  of  the  landlord  to  give  notice  to  the 
tenant  that  he  can  no  longer  keep  the  premises,  and  if  the  tenant 
fails  to  give  such  notice  he  is  liable  for  a  year's  rent.16  In  Vir- 
ginia the  notice  required  from  either  party  to  the  other  in  case 
of  a  tenancy  from  year  to  year  is  three  months  within  a  city  or 
.town,  and  six  months  in  the  country.17  The  tenancy  can,  how- 
ever, only  be  terminated  by  notice  to  take  effect  at  the  end  of 
some  current  year  of  the  tenancy,  and  not  at  any  other  time  of 
the  year.  The  notice  must  be  in  writing,  unconditional,  and 
must  be  executed  as  above  stated  the  required  length  of  time 

11.  Code,   §   2790. 

12.  Peirce   v.    Grice,   92   Va.    763-767,   24   S.    E.   392;    Allen   v.    Bart- 
lett,  20  W.  Va.  46;  Voss  v.  King,  38  W.  Va.  607,  18  S.  E.  762. 

13.  City  of  Richmond  v.  Duesberry,  27  Gratt.  210,  212. 

14.  Crawford  v.   Morris,  5   Gratt.  90. 

15.  Harrison  v.  Middleton,  11  Gratt.  527. 

16.  Allen  v.  Bartlett,  20  W.  Va.  46. 

17.  Code,   §   2785.     The    statute    also   provides    for   a    tenancy   from 
month  to  month. 

In  this  connection,  see  Kaufman  v.  Mastin,  66  W.  Va.  99,  66  S.  E. 
92,  holding  that  where  a  tenant  holds  over  paying  monthly  rent  be- 
yond the  time  of  his  lease  for  a  year,  in  which  his  rent  is  reserved 
by  the  month,  payable  monthly,  does  not  thereby  alone  imply  a  re- 
newal by  the  year,  but  rather  a  renewal  by  the  month. 


6  REDRESS  OF  PRIVATE   WRONGS — DISTRESS   FOR  RENT       §§  5-7 

before  some  current  year  of  the  tenancy.18  In  a  number  of 
states  the  remedy  by  distress  for  rent  has  been  repealed  or  else 
was  never  adopted.  Distress  for  rent  does  not  exist  in  Colo- 
rado, Massachusetts,  North  Carolina,  Mississippi,  Minnesota, 
New  York  and  Wisconsin.  In  the  last  three  named  states  it 
once  existed,  but  was  abolished.19 

A  distress  warrant  is  in  the  nature  of  an  execution  against  the 
goods  of  the  defendant  to  make  the  amount  of  money  set  forth 
in  the  warrant,  and  the  costs.  It  is  issued  without  judgment  or 
other  judicial  investigation  into  the  liability  of  the  defendant  for 
the  amount  claimed.  The  defense  comes  afterwards.  No  return 
day  is  fixed  in  the  warrant  in  Virginia,  but  the  officer  holding  the 
warrant  is  required  to  return  it  within  sixty  days  to  the  office  of 
the  clerk  of  his  county  or  corporation.20  For  form  of  affidavit 
and  distress  warrant,  see  Hurst's  Guide  and  Manual,  723,  724. 

§   5.   Interest  on  rent. 

In  the  absence  of  statute,  interest  is  generally  not  allowed,  the 
common  law  not  allowing  interest  unless  stipulated  for  express- 
edly  or  impliedly.  In  Virginia  interest  is  generally  allowed,  the 
statute -declaring  that  in  any  action  for  rent  interest  may  be  al- 
lowed as  on  other  contracts.21 

§  6.   Limitation  of  time  to  Distrain. 

At  common  law  there  was  no  limitation  to  the  right  to  dis- 
train so  long  as  the  property  remained  on  the  leased  premises. 
In  Virginia,  rent  cannot  be  distrained  for,  for  a  period  longer 
than  five  years  after  maturity,  where  the  property  is  still  on  the 
leased  premises ;  and,  if  it  has  been  removed,  it  must  be  dis- 
trained within  thirty  days  after  removal.22 

§   7.   By  whom  distress  warrant  levied. 

At  common  law  a  distress  warrant  was  levied  by  the  landlord 
himself  or  his  private  servant  (bailiff),  in  pursuance  of  the  au- 

18.  Bait.  Dental  Ass'n  v.   Fuller,  101  Va.  627,  44  S.   E.   771. 

19.  7  Encl.  PI.  &  Pr.  21  and  22. 

20.  Code,  §  2794a. 
81.  Code,   §  2787. 

22.  Code,    §§    2790,    2791. 


§    8         IRREGULARITY    OR    ILLEGALITY    IN    MAKING    DISTRESS  7 

thority  conferred  by  the  landlord.  In  Virginia  a  warrant  issues 
from  a  justice  of  the  peace  or  the  clerk  of  the  circuit  or  corpora- 
tion court,  regardless  of  the  amount  of  the  rent,  and  is  directed 
to  a  constable,  sheriff,  or  sergeant  of  a  corporation.  This  war- 
rant is  obtained  by  making  and  delivering  to  the  justice  of  the 
peace,  or  clerk,  an  affidavit  (written  oath)  of  the  person  claim- 
ing the  rent,  or  his  agent,  that  the  amount  of  money  or  other 
thing  to  be  distrained  for  (to  be  specified  in  the  affidavit)  as  af- 
fiant verily  believes,  is  justly  due  to  the  claimant  for  rent  re- 
served upon  contract  from  the  person  of  whom  it  is  claimed.23 
In  order  to  justify  a  distress  warrant,  the  rent  must  be  reserved 
by  contract,  and  it  must  be  due;  that  is,  the  warrant  cannot  is- 
sue until  after  midnight  of  the  last  day  of  the  tenancy.  For 
rent  not  due,  the  proceeding  is  by  attachment,  as  will  hereafter 
be  seen.  The  officer  levies  the  warrant  generally  by  taking  into 
custody  the  property  subject  to  the  levy.  At  common  law  the 
levy  could  only  be  made  on  the  premises  by  daylight,  and  the  dis- 
trainor  could  not  break  open  the  outer  door  of  the  tenant's  dwell- 
ing, but  might  break  the  inner  door  of  the  dwelling  house,  or 
outer  door  of  an  outhouse,  or  of  a  stranger's  dwelling  provided 
goods  liable  to  distress  were  found  therein;  but  of  this  he  took 
the  risk  of  being  held  to  be  a  trespasser  ab  initio.  Generally  by 
statute  the  rule  is  otherwise.  In  Virginia  goods  removed  not 
more  than  thirty  days,  may  be  distrained  anywhere,  and,  whether 
removed  or  not,  an  outer  door  of  the  tenant's  own  dwelling  may 
be  broken  by  the  officer  in  the  daytime,  if  goods  are  found  there 
liable  to  distress ;  and  if  goods  have  been  clandestinely  or  fraud- 
ulently removed,  he  may  either  in  the  daytime  or  nighttime, 
break  and  enter  any  house  wherein  there  may  be  goods  so  lia- 
ble.24 

§   8.   Irregularity  or  illegality  in  making  distress. 

At  common  law  the  distrainor  became  a  trespasser  ab  initio, 
and  liable  for  all  damage  done,  if  there  was  any  irregularity  or 
illegality  in  making  the  distress.  In  Virginia,  if  the  rent  is 
justly  due  the  distress  is  valid,  but  the  landlord  is  liable  for  ac- 

23.  Code,   §   2790. 
24-  Code,  §  2793. 


8  REDRESS  OF  PRIVATE  WRONGS — DISTRESS  FOR  RENT     §§    9-10 

tual  damages  resulting  from  the  irregularity  or  illegality.     If  no 
rent  is  due,  he  is  a  trespasser  ab  initio  as  at  common  law.25 

§   9.   Disposition  of  property  levied  on. 

At  common  law  it  was  simply  held  as  a  pledge  or  security, 
but  long  since  in  England  and  in  all  the  states  provision  has  been 
made  for  a  sale  of  the  property  by  an  officer,  and  the  payment 
of  the  rent.  In  Virginia,  the  sale  is  made  at  public  auction  for 
cash,  after  ten  days'  notice  posted  at  some  place  near  the  resi- 
dence of  the  owner  of  the  property  levied  on,  if  a  resident  of 
the  county  or  corporation,  and  at  two  or  more  public  places  in 
the  officer's  county,  city,  or  district.  If  the  property  levied  on, 
however,  be  horses,  mules,  or  work  oxen,  they  must  be  adver- 
tised for  thirty  days  by  hand-bills  posted  at  the  front  door  of 
the  courthouse,  and  at  five  or  more  public  places  in  the  county  or 
corporation  where  the  levy  is  made,  and  if  it  be  in  the  county 
these  places  must  be  at  least  two  miles  apart.20 

§   10.   Delivery    or    forthcoming    bond    and    proceedings 
thereon. 

At  common  law  if  the  validity  of  a  distress  was  questioned 
by  a  tenant  it  was  settled  by  an  action  of  replevin,  which  will 
be  treated  of  later,  but  in  Virginia  when  property  of  a  tenant 
is  levied  on  for  rent  and  he  wishes  to  contest  the  right  of  the 
landlord  to  recover,  in  whole  or  in  part,  or  wishes  simply  to  re- 
tain the  property  for  awhile,  so  as  to  get  a  breathing  spell,  in 
either  case,  he  executes  and  delivers  to  the  officer  making  the 
levy  what  is  called  a  forthcoming  or  delivery  bond.  This  is  a 
plain  bond,  usually  for  an  amount  equal  to  double  the  amount 
for  which  the  distress  is  made  (principal,  interest,  and  costs), 
regardless  of  the  value  of  the  property  levied  on,  and  is  gen- 
erally executed  by  the  tenant  with  one  or  more  sureties  payable 
to  the  landlord,  with  a  condition  underwritten  as  a  part  of  the 
bond  (after  reciting  the  issue  of  the  distress  warrant,  and  the 

25.  Code,  §  2794. 

26.  Code,  §§  906,  907.     Where  the  property  levied  on  is  perishable 
or   expensive   to  keep;   these   sections   make  provision   for   a   sale   on 
less  than  ten   days'  notice,  but   this  requires   on   order  of  the   court, 
the  judge,   or  justice   after  notice   to   the   adverse   party. 


§    10  DELIVERY    OR    FORTHCOMING    BOND  9 

levy  thereof  on  certain  personal  property  of  the  tenant,  and  that 
the  tenant  wishes  to  retain  possession  thereof  until  the  day  of 
sale)  that  the  tenant  shall  have  the  property  forthcoming  at  the 
time  and  place  of  sale  mentioned  in  the  bond,  or  else  will  pay 
the  penalty  of  the  bond.  This  time  and  place  is  fixed  by  the 
officer  taking  the  bond.  If  the  property  is  delivered  to  the  of- 
ficer he  advertises  and  sells  it,  and  pays  the  rent  and  costs  to 
the  landlord,  but  if  the  property  is  not  then  and  there  delivered 
the  bond  is  said  to  be  forfeited.  It  is  then  the  duty  of  the  of- 
ficer to  return  the  bond  to  the  clerk's  office  of  his  county  or  cor- 
poration, when  it  has  the  force  and  effect  of  a  judgment  against 
such  of  the  obligors  therein  as  are  alive  at  the  time  it  was  for- 
feited and  returned.27  The  landlord  then  gives  the  obligors  in 
the  bond  ten  days'  written  notice  that  on  a  certain  day  he  will 
move  the  court  for  an  award  of  execution  on  this  bond,  and,  in 
reply,  the  tenant  may  show  "that  the  distress  was  for  rent  not 
due  in  whole  or  in  part,  or  was  otherwise  illegal."28  If  no  such 
defence  is  made,  judgment  is  given  for  the  penalty  of  the  bond 
to  be  discharged  by,  the  amount  of  the  rent  due  (principal  and 
interest)  and  the  cost  of  the  motion.  The  defendant  may  also 
make  other  defences  such  as  non  est  factum,  conditions  per- 
formed, set-off,  etc.29  Generally  no  formal  pleadings  are  filed 
by  the  defendants,  but  they  state  the  grounds  of  their  defence 
ore  tenus,  or,  if  required,  in  writing.30  If  an  issue  of  fact  is 
made,  and  either  party  desires  it,  he  may  have  a  jury  trial.31 

27.  Code,   §§  3617,  3619,  3210. 

28.  Code,  §   3621. 

29.  Allen   v.   Hart,   18    Gratt.   722;    Hancock   v.   Whitehall   Tobacco 
Co.,  100  Va.  443,  41  S.  E.  860. 

30.  Code,   §  3249. 

31.  Code,   §   3213.     As   to   the   return   of  the   officer,   it  is   provided 
that  "such  return  shall  be  to  the  court  from  which  such  order,  war- 
rant, or  process  emanates,  or  to  which  it  is  returnable,  and  in  other 
cases,    not    specifically    provided    for,    shall    be    to    the    court    of    the 
county  or  corporation  in  or  for  which  he  was  elected  or  appointed." 
Code,  §§  900,  3619,  2794-a.     As  a  distress  warrant  does  not  emanate 
from  a  court,  and  is  not  returnable  to  a  court,  the  warrant  and  any 
bond   taken   thereunder   cannot  be   returned  to   the   Circuit   Court   of 
a  city,  but  must  be  returned  to  the  corporation  court,  and  if  the  dis- 
tress warrant  is  levied  on  property  outside  of  the  city  or  county  in 


10  REDRESS  OF  PRIVATE  WRONGS — DISTRESS  FOR  RENT  §  10 

If  the  tenant  is  unable  to  give  bond,  and  yet  has  a  valid  de- 
fense, he  may  make  affidavit  to  these  facts,  and  the  officer  levy- 
ing the  warrant  is  required  to  permit  the  property  to  remain  in 
the  possession  and  at  the  risk  of  the  tenant,  and  to  return  the 
affidavit  and  distress  warrant  to  the  first  day  of  the  next  term 
of  the  circuit  court  of  his  county,  or  the  corporation  court  of  his 
corporation,  and  thereupon  the  defendant  may  make  the  same 
defense  as  if  a  bond  had  been  given.32  The  claimant  of  the  rent, 
"however,  may  require  the  officer  to  take  possession  of  the  prop- 
erty and  hold  it  subject  to  the  order  of  the  court,  by  giving  bond 
with  sufficient  surety,  in  the  penalty  double  the  value  'of  the 
property  levied  on,  with  condition  to  pay  all  costs  and  damages 
which  may  accrue  to  any  one  by  reason  of  his  suing  out  said 
warrant.  No  form  of  procedure  is  given,  but  it  is  presumed  that 
the  landlord  makes  a  motion,  after  notice,  for  a  judgment  for 
his  rent,  and  in  reply  to  this  motion  the  tenant  makes  defense, 
but  the  statute  is  silent  both  as  to  notice  and  motion. 

If  rent  be  reserved  in  a  share  of  the  crop,  or  in  anything  other 
than  money,  a  distress  warrant  is  first  obtained  as  in  other  cases, 
and  then  the  claimant  of  the  rent  is  required  to  give  notice  to  the 
tenant  of  the  time  and  place  when  he  will  apply  to  the  court  to 
ascertain  the  value  of  the  share  of  the  crop  reserved.  When 
this  value  is  ascertained,  the  court  makes  an  order  for  the  sale 
of  the  property.  It  is  not  clear  at  what  stage  of  the  proceeding 
the  tenant  can  make  his  defense,  whether  it  is  at  that  time  of 
the  application  to  ascertain  the  value,  or  whether  the  tenant  is 
allowed  to  give  a  forthcoming  bond  and  make  his  defense  when 
motion  on  that  bond  is  made.  The  forms  given  by  Mr.  Minor 
would  seem  to  indicate  the  latter.33 

which  it  issues,  the  forthcoming  bond,  if  one  is  given,  must  be  re- 
turned to  the  circuit  court  of  the  county,  or  the  corporation  court 
oi  the  city  wherein  the  levy  was  made,  and  not  where  the  warrant 
issued.  If  a  forthcoming  bond  is  taken  "upon  a  fieri  facias  issued 
by  a  justice,"  provision  is  made  for  taking  judgment  thereon  "on 
motion"  before  a  justice,  but  the  statute  is  silent  where  the  bond  is 
taken  upon  a  distress  warrant  and  it  is  presumed  that  the  proceeding 
by  mo.tion  before  a  justice  does  not  lie  (Code,  §  3625)  and  the  juris- 
diction of  the  justice  will  be  determined  by  the  Code,  §  2939. 

32.  Code,  §  3618. 

33.  Code,  §  2795;  4  Min.  Inst.   (3rd  ed.)   1619-1620. 


§    11  WHAT    PROPERTY    MAY    BE   DISTRAINED  11 

§   11.   What  property  .may  be  distrained. 

At  common  law,  generally  all  goods  and  chattels  found  on 
the  leased  premises  were  liable  to  distress,  whether  they  belonged 
to  the  tenant  or  not,  except  things  in  which  there  could  be  no 
property,  such  as  dogs,  cats,  wild  animals,  and  the  like;  things 
so  perishable  in  their  nature  that  they  could  not  be  returned  in 
the  same  condition  as  when  taken,  such  as  milk,  fruit,  and  the 
like;  things  affixed  to  the  freehold  as  a  part  thereon,  such  as 
millstones,  grates,  mantels,  and  the  like;  things  in  the  actual 
personal  possession  of  the  tenant ;  personal  property  not  the  prop- 
erty of  the  tenant,  but  in  his  possession  temporarily,  either  for 
purposes  of  trade,  such  as  a  horse  at  a  shop  to  be  shod,  or  goods 
at  a  tailor's  to  be  made  up;  or  things  in  possession  of  the  ten- 
ant without  the  default  of  the  owner;  as  cattle  which  were  not 
levant  and  couchant  and  tools  of  a  man's  trade.  The  purpose  of 
the  common  law  was  to  detain  the  property  as  a  means  of  com- 
pelling the  tenant  to  pay  the  rent,  and  not  to  sell  it  and  apply  it 
to  the  payment  of  the  rent.  Hence  there  was  some  reason  for 
not  levying  on  things  that  could  not  be  returned  in  kind,  and 
for  not  depriving  the  tenant  of  the  use  of  certain  things  which 
were  necessary  to  enable  him  to  make  the  money  to  pay  the  rent, 
as  in  case  of  tools  of  a  man's  trade.  As  the  object  of  the  mod- 
ern distress  warrant  is  to  sell  the  property  levied  on  and  pay  the 
rent,  the  common-law  rule  has  been  very  generally  changed.  The 
common-law  doctrine  of  exemption  on  account  of  the  perishable 
nature  of  property  is  greatly  modified,  and  in  large  measure  re- 
pealed, in  consequence  of  the  use  of  modern  preservatives  and  the 
provisions  of  modern  codes,  authorizing  a  speedy  sale  of  articles 
perishable  in  their  nature  or  expensive  of  keep.34  Most,  if  not 
all,  fruits  may  be  preserved  until  a  speedy  sale,  and  such  things 
as  can  be  preserved  are  probably  no  longer  exempt  from  neces- 
sity on  account  of  the  perishable  nature  of  the  goods.  Now  only 
the  property  of  the  lessee,  his  assignee  or  under  tenant  (not 
that  of  others)  found  on  the  leased  premises,  or  removed  there- 
from not  more  than  thirty  days,  is  liable  to  distress  in  Virginia.34* 
There  is  exempt,  however,  tools  of  a  man's  trade  to  an  amount 

34.  Code,  §  906. 
34a.  Code,   §  2791. 


12          REDRESS  OF  PRIVATE   WRONGS DISTRESS  FOR  RENT     §§    12-13- 

not  exceeding  $100  in  value,  and  numerous  articles  of  personal 
property,  generally  known  as  the  poor  debtor's  exemption.35 
What  is  known  as  the  poor  debtor's  exemption  cannot  be 
waived.36  It  will  be  observed  that  the  landlord  may  distrain  on 
the  undertenant  for  the  whole  amount  of  the  rent  due  by  the  ten- 
ant regardless  of  the  state  of  accounts  between  the  tenant  and  the 
under-tenant — e.  g.,  if  the  tenant  owes  $1,000  rent,  and  the  un- 
der-tenant has  contracted  to  pay  only  $100  for  the  part  of  the 
premises  occupied  by  him,  the  landlord  may  levy  on  the  prop- 
erty of  the  under-tenant  found  on  the  leased  premises  for  the 
entire  $1,000  rent.  The  statute  puts  no  limit  on  the  extent  of 
the  liability  of  the  assignee,  or  under-tenant. 

§  12.   Redress  for  illegal  distress. 

At  common  law,  the  remedies  were  either  replevin,  in- 
junction or  trespass.  If  the  distress  was  void  ab  initio,  tres- 
pass ;  in  other  cases,  trespass  on  the  case.  By  statute,  the 
rights  of  a  third  person  to  property  levied  on  are  usually  settled 
by  a  proceeding  of  interpleader.37  The  tenant  generally  makes 
his  defenses  in  the  proceeding  on  a  delivery  bond,  which  has 
been  hereinbefore  given.  In  a  few  cases  where  there  is  no  ade- 
quate remedy  at  law,  the  tenant  or  a  third  person  may  have  an 
injunction.  In  other  cases  the  remedy  is  by  action  of  trespass, 
or  trespass  on  the  case.38 

§   13.   A  year's  rent  under  the  Virginia  statute. 

The  statutory  provisions  on  this  subject  will  be  found  in  §§ 
2791  and  2792  of  the  Code.  One  of  the  many  difficulties  which 
have  arisen  in  construing  these  sections  is  as  to  when  a  particu- 
lar tenancy  begins,  for  if  a  lien  is  created  on  the  goods  after  the 
tenancy  begins,  the  landlord  has  priority  for  a  year's  rent;  if 
before,  the  lien  creditor  has  priority.  If  a  tenant  holds  over,  it 
seems  that  the  hold-over  term  is  regarded  as  a  new  and  different 

35.  Code,    §§    3650,    3651. 

36.  Code,   §   3655. 

37.  Edmunds  v.  Hobbie  Piano  Co.,  97  Va.  588,  34  S.  E.  472;  Code, 
§§   2999,   3000. 

38.  Manchester  Loan  Ass'n  v.  Porter,  106  Va.  138,  56  S.  E.  337. 


§  13          A  YEAR'S  RENT  UNDER  THE  VIRGINIA  STATUTE  13 

term  from  the  contract  term,  and  hence  if  a  lien  be  created  dur- 
ing the  contract  term  on  goods  then  on  the  leased  premises,  such 
lien  has  priority  over  rent  accruing  during  the  hold-over  term, 
because  created  before  the  commencement  of  the  tenancy  for 
which  the  rent  is  claimed.39  A  landlord  in  Virginia  is  not  al- 
lowed to  distrain  for  rent  after  the  lapse  of  more  than  five  years 
after  maturity,  but  if  he  makes  a  levy  of  a  distress  warrant  for 
rent  that  has  not  been  due  more  than  five  years,  e,  g.,  for  four 
years  last  past,  before  any  other  lien  is  acquired  on  the  tenant's 
property,  he  thereby  acquires  a  lien  for  his  full  rent,  and  is  not 
restricted  to  the  year's  rent  provided  by  §§  2791,  2792  of  the 
Code.  These  sections  were  not  intended  to  operate  to  the  detri- 
ment of  the  landlord,  but  to  his  advantage.40 

The  above  sections  of  the  Code  undoubtedly  seem  to  give  the 
landlord  a  lien  for  a  year's  rent  as  against  all  liens  obtained 
after  the  goods  were  carried  on  the -leased  premises.  Whether 
this  lien  is  created  by  §  2791  or  §  2792  seems  to  be  a  matter  of 
some  doubt.41  If  the  lien  be  created  by  §  2791,  it  would  seem 
that  the  distress  might  be  levied  on  the  goods  not  only  while  on 
the  leased  premises,  but  for  thirty  days  after  the  removal,  and 
that  the  landlord  would  have  priority  over  any  intervening  lien, 
but  it  has  been  held42  that  the  landlord's  lien  for  a  year's  rent 
does  not  extend  to  protect  the  tenant's  property  from  execution 
except  in  cases  where  the  goods  are  on  the  premises  leased,  and 
that  a  lien  attaching  to  goods  after  removal,  but  within  the 
thirty  days,  takes  precedence  over  the  landlord's  subsequent 
levy,  although  within  the  thirty  days.  If  property  is  removed 
from  the  leased  premises,  and  within  thirty  days  thereafter 
an  execution  is  levied  thereon,  and  after  such  levy,  but  still 
within  the  thirty  days,  a  distress  warrant  for  rent  is  levied  on 
the  same  property,  who  has  priority?  The  case  of  Geiger  v. 
Harmon,  3  Gratt.  130,  seems  to  hold  that  the  execution  cred- 
itor has  priority.  In  that  case  there  was  no  distress  warrant, 

39.  City  of  Richmond  -v.   Duesberry,  27   Gratt.  210;   Wades  v.   Fig- 
gatt.  75  Va.  575;  Upper  Appomattox  Co.  v.   Hamilton,  83  Va.  319,  2 
S.    E.    195. 

40.  Sprinkel  v.   Rosenheim,   103   Va.   185,  48   S.   E.  883. 

41.  Anderson   v.    Henry,   45   W.   Va.   319,   31   S.    E.   998. 
42    Geiger  v.  Harmon,  3  Gratt.  130. 


14  REDRESS  OF  PRIVATE  WRONGS — DISTRESS  FOR  RENT  §  14 

but  the  landlord  gave  notice  of  a  lien.  The  language  of  §  2791 
apparently  gives  the  same  right  to  levy  within  the  thirty  days 
on  the  property  removed  from  the  leased  premises  as  upon  prop- 
erty remaining  thereon.  But  while  the  right  to  levy  within 
thirty  days  is  given  by  §  2791,  nothing  is  said  as  to  its  effect 
on  some  other  creditor  who  has  levied  a  fieri  facias  in  the 
meantime.  The  statute  now  is  the  same  as  when  Geiger  v.  Harmon 
was  decided.  The  right  of  the  landlord  to  levy  within  thirty 
days  was  given  by  statute  then  as  it  is  now.  But  both  then  and 
now  the  lien  for  a  year's  rent  applied  only  to  goods  "while  they 
are  on  the  leased  premises."  So  also  the  provision  of  §  2792 
for  paying  or  securing  a  year's  rent  is  applicable  only  to  "goods 
on  the  premises  leased  or  rented"  and  the  right  given 'is  only 
"to  remove  said  goods  from  the  premises"  under  certain  con- 
ditions. This  seems  to  have  been  the  view  in  Geiger  v.  Harmon. 
Neither  §  2791  nor  §  2792  gives  the  landlord  any  lien,  but 
simply  a  right  to  levy,  that  is  an  inchoate  lien  which  may  be 
perfected  by  a  levy  in  time,  but  may  be  lost  as  to  an  execution 
creditor  who  first  obtains  a  lien  and  perfects  it  by  a  levy.  The 
opinion  in  Geiger  v.  Harmon  is  very  brief,  but  seems  to  lead  to 
the  conclusion  that  if  the  levy  of  the  distress  warrant  is  not 
made  on  goods  removed  from  the  leased  premises  before  an 
execution  is  levied  on  it,  then  that  the  latter  has  priority.  In 
Geiger  v.  Harmon  the  question  necessarily  .involved  was  whether 
the  potential  lien  for  the  rent  could  be  perfected  within  thirty 
days  by  a  levy  so  as  to  override  an  execution  already  levied  on 
goods  removed  from  the  leased  premises  not  more  than  thirty 
days,  and  the  conclusion  of  the  court  was  in  effect  that  it  could 
not,  and  hence  Geiger  v.  Harmon  would  seem  to  decide  that  in 
order  for  the  distress  warrant  to  take  priority  over  an  execution 
it  must  be  levied  within  the  thirty  days,  and  before  the  ex- 
ecution is  levied. 

§14.    Motion  on  delivery  bond — Proof. 

If  the  execution  of  the  bond  is  alleged  in  the  notice,  as  it 
generally  is,  it  is  not  necessary  to  prove  it,  but  as  this  proceeding 
is  given  to  enable  a  tenant  to  make  defence,  it  is  a  necessary 
part  of  the  landlord's  case  to  prove  that  there  is  rent  due  by 


§§    15-16  ABATEMENT  OF  RENT  15 

contract,  and  the  amount  thereof.  The  burden  of  proof  is  on 
the  landlord,  and  if  he  simply  produces  the  bond  without  more, 
judgment  should  be  given  against  him.  He  must  establish  a 
contract  for  the  payment  of  rent  and  must  also  prove  the  de- 
fault of  the  obligors  in  the  performance  of  the  conditions  of 
the  bond.43 

§   15.    Effect  of  general  covenants  to. repair. 

At  common  law  a  covenant  to  keep  in  repair,  bound  the  tenant 
to  rebuild  buildings  destroyed  on  the  leased  premises.44  This  rule 
has  been  changed  by  statute  in  Virginia,  which  now  relieves  the 
tenant  from  that  duty,  and  also  provides  for  abatement  of  the 
rent  "for  such  time  as  may  elapse  until  there  be  again  upon  the 
premises  buildings  of  as  much  value  to  the  tenant  for  his  pur- 
poses as  what  may  have  been  destroyed."45  If  the  buildings  were 
of  no  value  to  the  tenant,  but  where  simply  leased  by  him  to  keep 
some  one  else  from  getting  them,  and  thereby  create  a  monopoly 
in  his  business  conducted  in  another  place,  then  the  destruction  ot 
the  buildings  cannot  be  said  to  lessen  their  value  to  the  tenant  for 
his  purposes  as  tenant,  and  there  will  be  no  abatement  of  the 
rent.46 

§    16.    Abatement  of  rent. 

If  part  of  the  premises  be  recovered  by  a  title  paramount  to 
that  of  the  landlord,  or  if  part  of  the  land  be  taken  back  by 
him  with  the  tenant's  consent,  or  there  be  a  total  destruction  of 
part  of  the  premises  by  act  of  God,  the  rent  is  apportioned,  but 
if  the  landlord  enter,  against  the  will  of  the  tenant  on  any  part 
of  the  leased  premises  and  take  possession  thereof,  the  whole 
rent  is  abated  until  the  tenant  is  restored  to  the  whole  pos- 
session.47 

43.  Carter  v.  Grant,  32  Gratt.  769. 

44.  Ross  v,   Overton,   3   Call.  309.     See   also   and   compare  Wattles 
v.  So.  Omaha  Co.,  50  Neb.  251,  61  Am.   St.   Rep.  554  and  note. 

45.  Code,  §  2455;  Richmond  Ice  Co.  v.  Crystal  Ice  Co.,  99  Va.  239. 
38  S.  E.  141,  6  Va.  Law  Reg.  824. 

46.  Richmond  Ice  Co.  v.  Crystal  Tee  Co.,  103  Va.  465,  49  S.  E.  650. 

47.  Briggs  i.  Hall,  4  Leigh  484;  Tunis  v.  Grandy.  22  Gratt.  109. 


CHAPTER  II. 
ACCORD  AND  SATISFACTION. 

§  17.  Introductory. 

§  18.  Definition. 

§  19.  Subject  matter. 

§  20.  Accord  without  satisfaction. 

§  21.  Persons  who  may  make  satisfaction. 

§  22.  Consideration   of  accord. 

Part  payment  of  a  liquidated  money  demand, 

New  or  additional  consideration. 

Unliquidated  or  disputed  claims. 

Acceptance  of  property. 

Acceptance  of  a  promise. 
§  23.  Pleadings — Accord  and  satisfaction. 

§17.    Introductory. 

In  the  previous  chapter  it  was  stated  that  redress  by  act  of 
the  party  might  be  effected  either  by  the  act  of  the  party  injured 
alone,  which  was  the  subject  discussed  in  that  chapter,  or  by 
the  joint  act  of  both  the  party  injured  and  the  party  suffering 
the  injury.  The  latter  remedy  by  the  joint  act  of  both  parties 
may  be  effected  either:  (1)  by  Accord  and  Satisfaction,  or 
(2)  by  Arbitration  and  Award.  The  present  chapter  will  be 
devoted  to  a  brief  discussion  of  the  subject  of  Accord  and  Sat- 
isfaction. 

§   18.    Definition. 

Accord  is  the  agreement  of  one  party  to  give  or  perform,  and 
of  the  other  to  accept,  instead  of  some  claim,  something  different 
from  what  he  is  or  considers  himself  entitled  to;  and  satisfaction 
is  the  fulfillment,  or  carrying  out,  or  execution  of  the  agree- 
ment. The  effect  is  to  bar  recovery  on  the  original  claim.1 

§   19.    Subject  matter. 

All  simple  contract  debts  may  be  the  subject  of  accord  and 

1.  1  Cyc.  305;  Monographic  Note,  100  Am.  St.  Rep.  390;  Cumber 
r.  Wane,  1  Smith  L.  C.  633. 


§    20  ACCORD   WITHOUT    SATISFACTION  17 

satisfaction.  Judgments  may,  by  weight  of  authority,  be  settled 
by  parol  accord  and  satisfaction,  but  upon  this  subject  the  au- 
thorities are  in  conflict.2  As  to  obligations  under  seal,  it  is  said 
that  a  parol  accord  and  satisfaction  of  an  obligation  which  is 
required  to  be  under  seal  is  bad,3  but  the  exceptions  are  so 
numerous  as  almost  to  destroy  the  rule.  It  is  believed  that  the 
true  rule  is  "that  for  a  valuable  consideration  the  specialty  may, 
before  breach,  the  same  as  after,  be  discharged  by  the  mutual 
parol  agreement  of  the  parties."4 

All  torts  are  likewise  proper  subjects  of  accord  and  satisfac- 
tion. While  accord  and  satisfaction  cannot  operate  to  transfer 
title  to  a  freehold  and  such  title  cannot  be  barred  by  a  collateral 
satisfaction,  the  rights  of  the  parties  with  reference  to  such  free- 
hold are  a  legitimate  subject  of  accord  and  satisfaction.5 

§   20.    Accord  without  satisfaction. 

This  is  not  sufficient.  This  would  simply  be  agreement  without 
consideration.  The  thing  agreed  must  be  done  or  there  is  no 
satisfaction,  but  the  execution  of  an  executory  contract  may  be 
the  thing  agreed,  and  this  would  be  a  good  satisfaction.  For 
example,  it  may  be  agreed  that  a  party  shall  give  a  note  pay- 
able at  a  future  day  for  an  unascertained  liability.  If  the  note 
is  actually  given  and  accepted  in  pursuance  of  this  agreement,  the 
transaction  is  valid,  and  will  bar  all  proceedings  on  the  original 
cause  of  action.  The  time  of  performance  must  be  the  time  fixed, 
if  any,  if  none,  a  reasonable  time.  Neither  readiness  to  perform, 
nor  tender  of  performance,  nor  part  performance  and  tender  of 
the  residue  is  sufficient.6 

2.  1  Cyc.  309;  100  Am.  St.  Rep.  417  ff;   Boffinger  v.  Tuyes,  120  U. 
S.    205. 

3.  1   Cyc.   309. 

4.  Bish.    on    Con.,    §§    132,    135;    Canal    Co.   v.   Ray,    101   U.    S.   522; 
Phelps  v.   Seely,   22   Gratt.   573. 

5.  4  Min.  Inst.  167;  1  Am.  &  Eng.  End.  Law  (2nd  ed.)  409. 

6.  Jones  v.  Perkins,  64  Am.  Dec.  136  and  note;  Hearn  v.  Kiehl,  38 
Penn.   St.   147,   80  Am.   Dec.   472;    Kromer  v.   Hein,   75   N.   Y.   574,   31 
Am.   Rep.  491;   1   Smith   L.   C.   646;   7   Rob.   Pr.   528;   1   Encl.   L.   &   P. 
641. 


18  ACCORD  AND  SATISFACTION  §    21 

§   21.    Persons  who  may  make  satisfaction. 

The  parties,  if  of  contractual  capacity,  of  course  may  make 
satisfaction.  Strangers  may  likewise  make  satisfaction  if  pre- 
viously authorized,  or  if  their  acts  are  subsequently  ratified;  and 
it  would  seem  that  the  ratification  may  be  made  by  plea  after 
action  brought.  There  is  considerable  conflict,  however,  as  to 
the  validity  of  a  satisfaction  made  by  a  stranger.7 

On  the  subject  of  satisfaction  by  one  of  several  joint  wrong- 
doers, there  is  much  conflict  of  authority.  There  can  be  but  one 
satisfaction  for  a  wrong,  and  if  complete  satisfaction  has  been 
made  by  any  one  of  the  wrongdoers,  that  is  a  complete  discharge 
of  all  the  others.  It  is  immaterial  that  several  actions  are  pend- 
ing against  the  different  wrongdoers.  If  the  satisfaction  by  any 
one  is  for  the  whole  wrong,  it  inures  to  the  benefit  of  all,  al- 
though the  injured  party  expressly  reserves  his  right  against  the 
others.  It  is  said  that  where  the  release  is  under  seal,  or  ex- 
presses full  satisfaction  on  its  face,  the  attempted  reservation  of 
rights  against  other  joint  wrongdoers  is  void  as  being  repugnant 
to  the  effect  and  operation  of  the  release.  But  that  where  the 
release  of  one  is  not  a  technical  release  under  seal  and  does  not 
purport  to  be  a  complete  satisfaction  for  the  wrong  done,  the 
reservation  of  remedies  against  other  joint  wrongdoers  is  good, 
and  effect  will  be  given  to  the  intention  of  the  parties.8 

The  right  of  the  injured  party  to  settle  with  one  wrongdoer 
does  not  involve  any  question  of  contribution  among  wrongdoers. 
He  may  sue  all,  or  any  one,  or  any  intermediate  number.  They 
cannot  apportion  the  wrong  among  themselves  nor  compel  him  to 
do  so.  This  is  forbidden  by  public  policy.  But  as  he  may  select 
whom  he  will  sue,  no  reason  of  public  policy  forbids  him  to 
settle  with  any  one  for  his  share  of  the  wrong,  provided  he 
settles  only  for  his  share,  and  does  it  in  the  proper  manner.  A 
technical  release  under  seal  of  one  of  several  joint  wrongdoers 
saying  nothing  as  to  others  is  a  release  of  all.  The  release  being 

7.  Note,   100  Am.   St.  396,  397. 

8.  24  Am.    &   Eng.    Encl.   Law   306,   307,   and   cases    cited;    Bloss   v. 
Plymale,  3  W.  Va.  393,  100  Am.   Dec.  752,  which  criticises   Ruble  v. 
Turner,  2  H.  &  M.  38,  11  Am.  St.  906;  100  Am.  St.  401-2;  2  Black  on 
Judgments,    §    782. 


§   21  PERSONS   WHO    MAY    MAKE   SATISFACTION  19 

under  seal  and  absolute,  the  law  conclusively  presumes  that  it 
was  given  in  full  satisfaction  of  the  entire  wrong,  and  for  a 
sufficient  consideration.  But  no  such  presumption  arises  where 
the  injured  party  simply  covenants  not  to  sue  one  of  the  wrong- 
doers, or  even  where  a  technical  release  under  seal  is  given  re- 
serving on  its  face  remedies  against  other  wrongdoers,  when  in 
fact  what  was  given  by  the  party  released  was  not  full  compen- 
sation. In  such  case,  the  injured  party  is  still  entitled  to  com- 
pensation for  the  wrong  done,  and  may  recover  the  full  amount 
from  the  party  not  released,  subject  to  credit  for  the  amount 
received  from  the  party  released.  In  such  case  no  rule  of  evi- 
dence is  violated.  It  must  be  conceded,  however,  that  there  is 
much  conflict  of  authority  on  this  subject.9  While  such  seems 
to  be  the  law  as  to  a  compromise  made  by  one  of  several  wrong- 
doers, the  rule  is  not  altogether  the  same  as  to  the  effect  of  a 
judgment  against  one  of  several  wrongdoers.  In  England  and 
in  Virginia  a  judgment  against  one  of  several  joint  wrongdoers, 
with  or  without  satisfaction,  is  a  bar  to  any  action  against  the 
others.10  The  great  weight  of  authority,  however,  in  the  United 
States  is  to  the  effect  that  judgment  alone  without  satisfaction 
is  not  a  bar  to  an  action  against  the  other  wrongdoers,  and  that, 
in  order  for  such  judgment  to  constitute  a  bar,  the  judgment 
must  be  satisfied.11 

Generally,  in  the  absence  of  statute,  a  total  release  of  one  of 
several  joint  obligors  is  a  release  of  all,12  but  it  is  otherwise  pro- 
vided by  statute  in  Virginia.13  It  must  be  observed  that  the 
Virginia  statute  applies  only  to  joint  contractors  or  co-obligors, 
and  has  no  application  to  joint  wrongdoers.  Satisfaction,  however, 
of  the  whole  claim  to  one  of  several  joint  obligees  is  a  satisfaction 
to  all,  in  the  absence  of  fraud. 

9.  Louisville  Mail  Co.  v.  Barnes,  117  Ky.  860,  111  Am.  St.  Rep. 
273  and  note;  1  Encl.  L.  and  P.  648. 

10.  Brinsmead  v.   Harrison,   L.   R.   7   C.   P.   547;   Petticolas  v.   City 
of  Richmond,  95  Va.  456,  28  S.  E.  566. 

11.  Lovejoy  v.  Murray,  3  Wall.  10;  Miller  v.  Hyde,  161  Mass.  472, 
42  Am.  St.  Rep.  and  note. 

12.  100  Am.   St.  400,  401. 

13.  Code,   §  2856. 


20  ACCORD  AND  SATISFACTION  §    22 

§   22.    Consideration  of  accord. 

Part  payment  of  a  liquidated  money  demand  was  not  good 
at  common  law,  unless  it  was  evidenced  by  a  release  under  seal,  or 
the  transaction  was  founded  upon  a  new  consideration,14  but  the 
surrender  of  an  instrument  for  cancellation  is  said  to  be  equiva- 
lent to  a  release.15  This  common-law  rule  has  been  changed  in 
Virginia  and  in  many  other  states  including  Alabama,  California, 
Georgia  and  Mississippi.16  If  there  be  a  bona  fide  controversy 
about  the  currency  in  which  an  obligation  is  to  be  discharged, 
and  the  kind  is  afterwards  agreed  'Upon  and  paid,  this  is  good.17 

Any  new  or  additional  consideration  will  generally  suffice 
to  make  the  satisfaction  valid.  Payment  before  maturity,  at  an- 
other place,  by  a  third  person,  abandonment  of  a  defence  and 
payment  of  costs,  are  all  good.  Receiving  a  debtor's  note  for 
less  than  the  debt  due  is  said  to  be  a  good  satisfaction,  and  so  it 
is  said  the  acceptance  of  the  check  of  the  debtor  for  $100  in  pay- 
ment of  $125  is  good,  because  it  is  paid  by  check  and  not  in  cash.18 
This  seems  to  be  straining  the  doctrine  to  the  utmost  limits,  if  it 
does  not  exceed  it.  So  giving  a  new  security  and  even  the  giving 
of  an  individual  note  by  one  of  several  joint  debtors  for  a  less 
sum,  has  been  held  to  be  good.19 

Unliquidated  or  disputed  claims  may  be  settled  at  any  price 
or  on  any  terms  agreed  upon  between  the  parties.  Retention  of 
a  check  declared  to  be  in  full  will  constitute  a  good  accord  and 
satisfaction  of  a  disputed  claim.20 

Acceptance  of  property  in  satisfaction  is  good  against  any 
claim  unless  an  agreed  money  value  be  fixed  upon  the  property. 
In  the  latter  case  it  would  not  be  good  against  a  liquidated  de- 
mand for  a  larger  sum  in  those  jurisdictions  which  deny  the  right 

14.  See  cases  cited  in  note  16,  infra. 

15.  Reynolds   v.    Reynolds,   55   Ark.   369,   18   S.   W.   377. 

16.  Code,  §  2858;  Seymour  v.  Goodrich,  80  Va.  303;  Standard  S.  Co. 
v.   Gunter,   102  Va.   568,  46   S.   E.   690;    Frank  v.   Gump,   104  Va.   306, 
51   S.   E.  358. 

17.  San  Juan  v.  St.  Johns  Gas  Co.,  195  U.  S.  510. 

18.  1  Am.  &  Eng.  Encl.  Law   (2nd  ed.)   416. 

19.  Note  100  Am.  St.  399. 

20.  1   Cyc.   333. 


§    23  PLEADINGS — ACCORD    AND    SATISFACTION  21 

to  make  part  payment  of  a  money  demand  a  satisfaction  of  the 
whole.    The  same  rule  applies  to  services. 

Acceptance  of  a  promise  is  good  as  a  satisfaction  if  based 
upon  a  sufficient  consideration. 

§  23.     Pleadings — Accord   and   satisfaction. 

The  defence  of  accord  and  satisfaction  may  be  made  under  the 
general  issues  in  assumpsit,  case,  and  debt  on  a  simple  contract. 
In  other  actions  it  must  be  specially  pleaded.  The  plea  should 
allege  (1)  the  accord  or  agreement,  (2)  satisfaction  in  pur- 
suance thereof,  (3)  the  acceptance  of  the  satisfaction.21  In  code 
states  accord  and  satisfaction  must  be  specially  pleaded. 

21.  4  Min.  Inst.  169;  7  Rob.  Pr.  55.2,  et  seq. 


CHAPTER  III. 

ARBITRATION  AND  AWARD. 

§  24.  Introduction. 

§  25.  Who  may  submit. 

§  26.  What    may   be    submitted. 

§  27.  Mode   of  submission. 

§  28.  Who  may  be  arbitrator. 

§  29.  The  umpire. 

§  30.  Revocation    of    submission. 

§  31.  Proceedings   before   arbitrators. 

§  32.  The   award. 

§  33.  Form    of    award. 

§  34.  Effect  of  award. 

§  35.  Mode  of  enforcing  performance  of  award. 

§  36.  Causes    for   setting  aside   award. 

§  37.  Relief  against  erroneous  award. 

§  38.  Awards,   how   pleaded. 

§  39.  Costs. 

§   24.    Introduction. 

Usually  two  or  more  arbitrators  are  selected  (though  there 
may  be  only  one),  and  if  they  cannot  agree  they  are  allowed  to 
select  an  umpire.  The  arbitrators  are  "judges  of  the  parties' 
own  choosing."  Their  decision  is  called  an  "award." 

§   25.    Who  may  submit. 

Any  person  or  corporation  capable  of  making  a  contract  may 
submit  a  controversy  to  arbitration,  but  in  the  absence  of  statute' 
personal  representatives  and  other  fiduciaries  practically  guarantee 
the  correctness  of  the  award.1  In  Virginia  they  are  not  liable  for 
losses  by  arbitration  unless  occasioned  by  their  fault  or  neglect.2 
It  has  been  held  that  infants  cannot  submit  to  arbitration,  and  if 
they  are  parties  to  a  submission  they  are  not  bound  thereby,  and 
hence  the  adults  are  not  bound  either;  that  the  award  is  in  the 
nature  of  a  judgment,  and  the  interest  of  the  infant  cannot  be 
looked  after  and  protected  as  in  court,  and  the  award  will  not 

1.  Wheatley  v.   Martin,  6  Leigh  62. 

2.  Code,   §   3010. 


§   26  WHAT    MAY   BE    SUBMITTED  23 

be  enforced,  although  in  favor  of  the  infant,3  but  this  is  not  be- 
lieved to  be  sound.4  The  guardian  of  an  infant  may  submit,  and 
the  award  will  be  binding  under  the  Virginia  statute.5  One 
partner  cannot  submit  firm  matters  unless  specially  authorized, 
though  he  himself  will  be  bound.6  An  attorney  to  prosecute  or 
defend  a  suit  may  submit  the  matter  involved  in  the  cause  to 
arbitration,  but  ordinarily  agents  cannot  unless  specially  author- 
ized.7 It  has  been  held  in  West  Virginia  that  an  attorney  cannot 
submit  his  client's  case  to  arbitration  unless  the  submission  be 
in  open  court.8 

§   26.    What  may  be  submitted. 

Personal  demands  of  all  kinds,  ex  contractu,  and  ex  delicto, 
disputes  touching  boundaries  of  land,9  but  not  public  crimes.10 

3.  Britton  v.  Williams,  6  Munf.  453. 

4.  2  Am.  &  Encl.  Law   (2nd  ed.)   616. 

5.  Section   3010   of  the   Code   is   as   follows:    "Any  personal   repre- 
sentative of  a  decedent,  guardian  of  an  infant,  committee  of  an  insane 
person,  or  trustee,  may  submit  to  arbitration  any  suit  or  matter  of 
controversy  touching  the  estate  or  property  of  such  decedent,  infant, 
or  insane  person,  or  in  respect  to  which  he  is  trustee.     And  any  sub- 
mission so  made  in  good  faith,  and  the  award  made  thereupon,  shall 
be  binding  and  entered  as  the  judgment  of  the  court,  if  so  required 
by    the    agreement,    in    the    same    manner  as  other  submissions  and 
awards.     No    such    fiduciary    shall    be    responsible    fo-r   any   loss    sus- 
tained by  an  award  adverse  to  the  interests  of  his  ward,  insane  per- 
son,   or  beneficiary  under   any   such    trust,    unless   it   was   caused   by 
his  fault  or  neglect." 

6.  2  Am.   &   Eng.   Encl.   Law   (2nd  ed.)   617;   Wood  v.   Shepperd,   2 
Pat.    &   H.   442. 

7.  Marshall,  Ch.  J.,  in  Holker  v.  Parker,  7  Cranch  436,  449;  2  Am. 
&  Eng.  Encl.  Law  (2nd  ed.)  625,  and  cases  cited. 

8.  McGinnis  v.  Currie,  13  W.  Va.  29. 

9.  Miller  v.  Miller,  99  Va.  125,  37  S.  E.  792. 

10.  Section  3006  of  the  Code  is  as  follows:  "Persons  desiring  to 
end  any  controversy,  whether  there  be  a  suit  pending  therefor  or 
not,  may  submit  the  same  to  arbitration,  and  agree  that  such  sub- 
mission may  be  entered  of  record  in  any  court.  Upon  proof  of  such 
agreement  out  of  court,  or  by  consent  of  the  parties  given  in  court, 
in  person  or  by  counsel,  it  shall  be  entered  in  the  proceedings  of 
such  court;  and  thereupon  a  rule  shall  be  made,  that  the  parties 
shall  submit  to  the  award  which  shall  be  made  in  pursuance  of  such 
agreement." 


24  ARBITRATION   AND  AWARD  §§    27-28 

The  award,  however,  cannot  per  se  transfer  title  to  a  freehold, 
nor  in  Virginia,  to  a  term  of  over  five  years.11  An  agreement  to 
submit  all  matters  in  dispute  that  may  arise  in  future  is  contrary 
to  public  policy,  as  it  ousts  the  courts  of  their  jurisdiction,12  but 
particular  questions  of  value  and  amount,  such  as  the  value  of 
property  destroyed  by  fire,  extra  work  done  by  builders,  or 
whether  work  was  done  according  to  specification,  estimates  of 
engineers,  architects,  etc.,  are  legitimate  subjects  of  contract  in 
advance  to  submit  to  arbitration.13 

§   27.    Mode  of  submission. 

An  agreement  to  submit  may  be  either  (a)  by  or  under  rule  of 
court,  that  is,  the  parties  agree  that  the  award  shall  be  entered 
as  the  judgment  of  the  court,  whether  a  suit  be  pending  about 
the  controversy  or  not,  or  (b)  by  agreement  out  of  court,  called 
in  pais.  It  may  be  in  writing  or  oral,  under  seal  or  not  under 
seal,  to  be  entered  as  a  judgment  or  not.14  In  2  Am.  &  Eng.  Encl. 
Law  (2nd  ed.)  543,  it  is  said:  "Where  a  written  instrument  is 
necessary  to  convey  or  pass  the  title  to  the  subject  matter  of 
the  dispute,  a  written  submission  is  necessary,"  and  this  would 
seem  to  be  the  weight  of  authority,  but  it  has  been  held  in  Virginia 
that  parties  may  agree  by  parol  to  settle  by  arbitration  the  divid- 
ing line  between  their  lots  of  land,  and  that  an  award  made  in 
pursuance  of  a  submission  for  that  purpose  will  bind  the  parties, 
although  the  arbitrators  make  a  parol  award,  where  the  submis- 
sion does  not  require  the  award  to  be  in  writing.15 

§  28.    Who  may  be  arbitrator. 

Any  one,  infant  or  adult,  married  woman  or  unmarried,  sane 
or  insane,  may  be  an  arbitrator.16  An  arbitrator,  however,  must 
not  have  an  interest  'unknown  to  the  parties,  or  be  biased,  or  be 

11.  Code,  §  2413. 

12.  2  Am.   &   Eng.   Encl.  Law   (2nd  ed.)   570;  note   2  Am.   St.   Rep. 
567;  Insurance  Co.  v.  Morse,  20  Wall.  445. 

13.  Note   2   Am.   St.    Rep.    567;   Condon   v.   So.    Side    R.    R.    Co.,   14 
Gratt.   302. 

14.  Code,    §   3006. 

15.  Miller  v.  Miller,  99  Va.  125,  37  S.   E.  792. 

16.  2   Am.    &   Eng.   Encl.   Law    (2nd   ed.)    633. 


§    29  THE  UMPIRE  25 

related  to  either  party  without  knowledge  of  the  other.  The 
refusal  of  one  arbitrator  to  act  revokes  the  submission  unless  the 
others  are  authorized  to  decide  the  controversy.17  Text-writers 
with  one  accord  say  that  an  idiot  or  lunatic  (if  known  to  be  such) 
may  be  an  arbitrator,18  but  I  can  find  no  case  so  holding.  In  a 
large  number  of  instances,  insanity  is  only  partial  and  there  is 
no  good  reason  why  one  known  to  be  partially  insane  may  not 
be  a  competent  arbitrator  as  to  most  questions  which  might  be 
submitted,  but  if  parties  should  submit  a  controversy  to  the  de- 
cision of  one  who  is  an  idiot  or  totally  insane  it  may  be  well 
doubted  whether  the  award  would  be  upheld,  as  such  a  decision 
would  be  a  mere  game  of  chance  which  is  not  encouraged  by  the 
law.  Arbitrators  need  not  be  sworn  in  a  common-law  arbitration 
unless  it  is  required  by  the  parties  to  the  submission,  nor  is  any 
oath  required  of  arbitrators  by  statute  in  Virginia.  There  is  no 
uniformity  in  the  statutory  provisions  of  others  states  on  this 
subject.19 

§   29.    The  umpire. 

There  is  a  well-defined  distinction  between  an  umpire  and  a 
third  arbitrator.  Whether  the  person  is  one  or  the  other  is  to  be 
determined  from  the  language  of  the  submission.  If  the  party 
selected  is  alone  to  determine  the  whole  dispute,  when  the  arbi- 
trators disagree,  then  he  is  an  umpire,  and  his  decision  may  be 
wholly  different  from  that  of  either  of  the  arbitrators.  If  the 
party  selected  is  simply  >to  be  added  to  the  arbitrators,  and  to 
act  with  them,  and  decide  with  them,  then  he  is  a  third  arbitrator, 
and  his  decision  must  accord  with  that  of  one  or  more  of  the 
arbitrators  so  as  to  make  the  opinion  of  a  majority  of  all  the 
arbitrators  settle  the  dispute.  Whether  the  party  chosen  be  an 
umpire  or  a  third  arbitrator,  he  must  possess  the  same  qualifica- 
tions as  any  other  arbitrator.  He  is  generally  either  selected  by 
the  parties  at  the  same  time  as  the  arbitrators,  or  more  commonly 
the  arbitrators  are  allowed  to  select  an  umpire  in  case  of  dis- 

17.  2  Am.  &  Eng.  Encl.  Law  (2nd  ed.)  642. 

18.  2  Am.  &  Eng.  Encl.  Law  (2nd  ed.)  633;  Bac.  Abr.  Arb.  D.;  Spe- 
cial Topics  in  Contracts,  279. 

19.  2  Am.  &  Eng.  Encl.  Law  (2nd  ed.)  639. 


26  ARBITRATION   AND  AWARD  §    30 

agreement.  According  to  the  weight  of  authority,  the  umpire 
must  hear  the  evidence  himself  directly  from  the  witnesses,  and 
cannot,  except  by  consent,  take  the  arbitrators'  statement  of  what 
the  evidence  given  before  them  was.20  But  several  states,  includ- 
ing Florida  and  South  Carolina,  hold  the  contrary.  After  hearing 
the  evidence,  the  umpire  is  to  decide  the  whole  controversy  sub- 
mitted, according  to  his  own  judgment,  and  not  merely  the  ques- 
tions on  which  the  arbitrators  have  disagreed,  unless  the  sub- 
mission indicates  a  different  rule.21  If  the  case  is  decided  by  the 
umpire,  he  alone  should  sign  the  award,  which  should  recite  the 
disagreement  of  the  arbitrators.22 

§   30.    Revocation  of  submission. 

At  common  law,  if  submission  was  by  rule  of  court  it  could 
not  be  revoked  except  by  leave  of  court,  and  if  revoked  it  was 
punishable  as  a  contempt,  but  if  revoked  it  is  probable  no  award 
could  be  made.  Under  the  Virginia  statute,23  submission  under 
a  rule  of  court  is  not  revocable  except  by  leave  of  court.  Other 
submissions  may  be  revoked  at  any  time  before  the  award  is 
made,  with  liability  on  the  revoking  party  to  an  action  for  dam- 
ages for  the  breach,  but  this  is  of  little  value  where  the  damages 
are  not  liquidated.  The  only  remedy  is  an  action  for  damages 
for  breach  of  the  submission.  The  agreement  to  submit  is  no 
bar  to  an  action  at  law  or  a  suit  in  equity  on  the  original  cause 
of  action,  and  no  foundation  for  suit  for  specific  performance. 
If  damages  are  sought  for  breach  of  the  agreement  to  submit, 
the  measure  of  recovery  is  the  costs  and  expenses  incurred,  un- 
less there  be  a  bond  with  penalty  in  the  nature  of  liquidated 
damages.24  The  revocation  may  be  express  or  implied,  and  may 
be  in  writing  or  oral,  though  it  is  sometimes  said  if  the  submission 
is  under  seal  the  revocation  must  be  also.25  In  2  Am.  &  Eng. 

20.  2  Am.  &  Eng.   Encl.   Law    (2nd   ed.)    716,  and  notes;   Coons  v. 
Coons,  95  Va.  434,  28  S.  E.  885. 

21.  Bassett  v.  Cunningham,  9   Gratt.   684. 

22.  2  Am.  &  Eng.  Encl.  Law   (2nd  ed.)  710,  ct  scq. 

23.  Code,   §   3007. 

24.  Corbin  v.  Adams,  76  Va.  58;  Rison  v.  Moon,  91  Va.  384,  22' S. 
E.  165. 

25.  4  Min.  Inst.  175. 


§    31  PROCEEDINGS  BEFORE  ARBITRATORS  27 

Encl.  Law  (2nd  ed.)  599,  it  is  said  that  the  revocation  must  be 
of  the  same  dignity  as  the  submission,  and,  in  the  notes,  that  "a 
written  submission  requires  a  written  revocation,  a  submission 
under  seal  can  only  be  revoked  under  seal."  The  same  or 
equivalent  language  is  used  in  "Law  of  Contracts,  Special  Topics," 
p.  285,  and  practically  the  same  authorities  are  cited.  But  unless 
the  matter  submitted  embraces  some  matter  required  by  law  to 
be  in  writing,  a  written  (unsealed)  contract  stands  on  no  higher 
footing  than  an  oral  contract;  nor  is  it  clear  that  a  sealed  con- 
tract may  not  be  discharged  by  parol. 

A  submission  under  rule  of  court  or  which  has  been  agreed 
to  be  entered  as  the  judgment  of  a  court  is  irrevocable.26  Rev- 
ocation will  be  implied  by  the  death  of  an  arbitrator  or  a  party, 
but  probably  not  by  the  bankruptcy  of  the  party.27  Express 
revocation  to  be  complete  must  be  communicated  to  the 
arbitrators.  Until  then  the  award,  if  made,  is  valid.  It 
has  been  held  that  a  submission  by  rule  of  court  was 
not  revoked  by  the  death  of  the  party  when  the  suit 
was  subsequently  revived  by  the  administrator,  and  the  arbitration 
proceeded  with.28  Sovereign  states  cannot  always  withdraw  from 
a  submission.29 

§   31.    Proceedings  before  arbitrators. 

The  proceeding  is  judicial  in  its  nature,  and  should  be  con- 
ducted like  other  judicial  proceedings,  by  notifying  parties  of 
time  and  place  of  meeting,30  swearing  witnesses,  and  hearing  only 
legal  evidence,  and  excluding  none  that  is  legal,  hearing  argu- 
ments of  counsel,  if  any,  seeing  that  neither  party  is  put  to 
disadvantage,  or  taken  by  surprise,  and  deciding  according  to 
legal  principles.  The  evidence  must  be  taken  in  the  presence 
of  the  parties,  or  at  least  after  notice  to  them  and  an  opportunity 

26.  Riley  v.  Jarvis,  43  W.  Va.  43,  26  S.  E.  366;  Turner  v.  Stewart, 
51   W.  Va.  492,  41  S.   E.  924. 

27.  2  Am.   &  Eng.   Encl.   Law    (2nd  ed.)    600-602;   5    Encl.   L.   &  P. 
61,  62. 

28.  Wheatley  v.   Martin,  6  Leigh  62. 

29.  Colombia  v.   Cauca   Co.,   190   U.   S   524. 

30.  Coons  v.  Coons,  95  Va.  434,  28  S.  E.  885. 


28  ARBITRATION    AND    AWARD  §    32 

to  be  present.  It  must  not  be  taken  behind  their  backs.31  In  2 
Am.  &  Eng.  End.  Law  (2nd  ed.)  661,  it  is  said  that  in  the 
United  States  arbitrators  are  not  bound  to  strict  rules  of  law 
as  to  the  admission  or  rejection  of  evidence,  but  may  receive 
the  evidence  of  witnesses  who  are  legally  incompetent  if  they 
think  proper.  The  mere  hearing  of  legal  or  incompetent  evidence 
will  not  vitiate  the  award,  but  if  the  decision  is  rested  on  such 
evidence  it  is  believed  it  will  vitiate  the  award  unless  the  arbi- 
trators are  constituted  the  sole  judges  of  the  law  as  well  as  the 
facts.32  In  England  and  probably  most  of  the  states  the  umpire 
must  rehear  the  case  de  novo,  but  in  some  states  this  right  is 
held  to  have  been  waived  unless  demanded  at  the  time.33 

§   32.    The  award. 

The  award  should  decide  all  that  was  submitted,  and  no  more 
(be  within  the  submission),  and  be  certain,  definite  and  final  in 
its  findings.  Awards  are  construed  liberally  so  as  to  uphold  them 
if  possible.  All  fair  presumptions  are  to  be  made  in  favor  of 
an  award.34  If  an  award  is  in  excess  of  the  submission,  the 
court  may  reject  the  excess,  and  render  judgment  for  what  is 
within  the  submission,  if  it  be  severable.35  It  is  not  necessary 
that  the  award  should  be  delivered  in  order  to  be  valid  unless 
the  submission  so  requires.36  When  signed  and  read  to  the  par- 
ties as  and  for  an  award  it  is  complete  and  final,  though  not 
delivered.37  If  the  award  is  uncertain  on  its  face  and  is  not 
made  certain  by  reference,  it  is  void,  and  the  parties  may  proceed 
as  if  there  had  been  no  submission.38  An  award  once  made  is 
final,  and  the  powers  of  the  arbitrators  then  cease.  They  cannot 
thereafter,  without  a  new  submission,  alter  or  amend  it.  If 
they  attempt  to  change  it,  it  may  be  enforced  as  originally  made.39 

31.  1  Cyc.  645. 

32.  Bassett   v.   Cunningham,   9   Gratt.   684. 

33.  2  Am.  &  Eng.  Encl.  Law  (2nd  ed.)  716;  Coons  v.  Coons,  supra. 

34.  Armstrong  v.  Armstrongs,   1  Leigh  491. 

35.  Martin   v.    Martin,    12   Leigh   495. 

36.  Byars  v.  Thompson,   12   Leigh   550. 

37.  Pollard  v.  Lumpkin,  6   Gratt.  398. 

38.  Cauthorn  v.   Courtney,   6  Gratt.  381. 

39.  Rogers  v.   Corrothers,   26  W.   Va.  238. 


§§    33-36  CAUSES  FOR  SETTING  ASIDE  AWARD  29 

§   33.    Form  of  award. 

It  it  not  required  to  be  in  any  particular  form,  but  if  it  be 
returnable  to  a  court  it  must  be  in  writing.  In  fact,  all  awards 
should  be  in  writing  to  prevent  mistakes  and  misapprehensions. 

§   34.   Effect  of  award. 

An  award  properly  made  bars  action  on  the  original  cause. 
Some  contracts  provide  as  a  condition  precedent  that  no  action 
shall  be  maintained  on  the  contract  until  the  amount  has  been 
first  settled  by  arbitrators,  or  by  an  engineer,  or  architect,  or 
some  person  selected  by  the  parties.  Under  contracts  contain- 
ing such  provisions,  the  award  is  a  condition  precedent  to  the 
right  to  maintain  an  action  on  the  contract.  The  most  frequent 
instances  of  contracts  of  this  nature  are  construction  contracts 
and  fire  insurance  policies.40 

§35.    Mode  of  enforcing  performance  of  award. 

If  the  award  has  been  entered  as  the  judgment  of  a  court,  it 
is  enforced  as  any  other  judgment  by  appropriate  writ  of  execu- 
tion, or  by  process  of  contempt.  If  it  has  not  been  so  entered, 
it  may  be  enforced  by  action  on  the  award  for  the  thing  awarded, 
or,  if  the  thing  awarded  be  land,  by  a  bill  in  equity,  or  by  ap- 
propriate action  on  the  agreement  of  submission.  If  the  submis- 
sion is  by  penal  bond,  an  action  may  be  maintained  on  the  bond 
for  the  penalty,  and  in  this  action  the  damages  sustained  may  be 
proved.  If  the  submission  is  by  agreement  under  seal,  an  action 
of  covenant,  or  now  in  Virginia  assumpsit,  may  be  maintained 
on  it.  If  by  agreement  not  under  seal,  assumpsit  is  the  ap- 
propriate action. 

§  36.    Causes  for  setting  aside  award.41 

An  award  may  be  set  aside  for  improper  conduct  on  the  part 
of  the  arbitrators,  such  as  bias  prejudice,  interest,  hearing  illegal 

40.  Condon  v.  So.  Side  R.  R.  Co.,  14  Gratt.  302;   X.  &  W.   Ry.  Cc. 
v.   Mills,  91   Va.   613,  22   S.   E.   556. 

41.  Section    3009    of   the    Code,    relating    to    awards    made    under    a 
rule  of  court,  is  as  follows:   "Xo  such  award   shall  be  set  aside,  ex- 


30  ARBITRATION   AND   AWARD  §    36 

evidence,  refusing  to  hear  legal  evidence  and  refusing  continuance 
when  proper,  etc.,42  or  for  improper  conduct  of  one  or  more  of 
the  parties,  such  as  fraud,  surprise,  etc.,  or  for  errors  appearing 
on  the  fact  of  the  award,  if  at  law ;  and  it  is  equally  the  rule 
of  equity  as  of  law,  that  as  a  rule,  the  reasons  for  setting  aside 
an  award  must  appear  on  its  face,  or  there  must  be  misbehavior 
of  the  arbitrators,  or  some  palpable  mistake.43  Usually,  as  stated, 
the  errors  must  appear  on  the  fact  of  the  award,  but  a  court  of 
equity  may  look  into  the  testimony  before  the  arbitrators  for  the 
purpose  of  determining  from  such  evidence  and  other  circum- 
stances, whether  the  errors  were  so  gross  and  palpable  as  to 
indicate  fraud,  corruption  or  misconduct  on  the  part  of  the  arbi- 
trators.44 "The  weight  of  authority  in  the  United  States  leans 
towards  making  absolute  the  certain  and  simple  rule  that  the 
award  of  arbitrators,  when  made  in  good  faith,  is  final,  and  can- 
not be  questioned  or  set  aside  for  a  mistake  either  of  law  or 
fact"45  But  if  the  mistake  is  so  gross  as  to  amount  to  fraud, 
the  parties  are  not  bound,  and  may  sue  on  the  original  cause 
of  action.46  Unless  there  is  a  perverse  misconstruction  of  the 
law,  or  the  arbitrators  intend  to  decide  according  to  law,  but 
mistook  the  law  in  a  palpable,  material  point,  the  award  will  not 
be  set  aside.  If  the  legal  question  is  doubtful,  or  is  designedly 
left  to  the  judgment  of  the  arbitrators,  the  award  is  generally 
conclusive.  It  must  appear  that  they  grossly  mistook  the  law. 
It  is  not  sufficient  simply  that  the  court  would  have  rendered  a 
different  decision  or  judgment.47 

"When  parties  submit  to  arbitration  their  rights  involved  in 

cept  for  errors  apparent  on  its  face,  unless  it  appear  to  have  been 
procured  by  corruption  or  other  undue  means,  or  that  there  was 
partiality  or  misbehavior  in  the  arbitrators  or  umpire,  or  any  of 
them.  But  this  section  shall  no*  be  construed  to  take  away  the 
power  of  courts  of  equity  over  awards." 

42.  4    Min.    Inst.    185-187;    Wheeling    Gas    Co.    v.    Wheeling,    5    W. 
Va.   448. 

43.  Wheatley  v.    Martin,   6   Leigh   62. 

44.  Fluharty  v.  Beatty,  22  W.  Va.  698. 

45.  2  Am.   &   Eng.   Encl.   Law    (2nd   ed.)    778. 

46.  N.   &  W.  v.   Mills,  91  Va.  613,  22   S.   E.   556;   Cornell  v.   Steele, 
109   Va.   589,   64   S.   E.   1038. 

47.  Portsmouth  v.  Norfolk,  31  Gratt.  727. 


§§  37-39  COSTS  31 

law  and  fact,  they  are  understood  to  submit  the  facts  to  the 
arbitrators  to  be  decided  on  according  to  law,  and  if  it  appear 
upon  the  face  of  the  award  that  they  grossly  mistook  the  law, 
the  award  will  be  set  aside.  But  where  it  appears,  as  in  the  case 
before  us,  that  the  parties  intended  to  submit  the  question  of  law 
alone,  the  decision  of  the  arbitrators  is  binding,  though  contrary  to 
law.  If  not,  it  would  not  be  competent  to  parties  to  make  a  valid 
submission  of  a  point  of  law;  for,  however  the  arbitrators  might 
decide,  no  litigation  would  be  avoided.  The  proper  court  would 
still  have  to  consider  and  decide  the  point  of  law  as  if  no  award 
had  been  made."48  This  is  believed  to  be  the  correct  principle. 

§   37.    Relief  against  erroneous  award. 

Generally  relief  can  be  given  by  a  bill  in  equity  only,  though 
in  some  cases,  where  the  award  is  offered  to  a  court  of  law  to 
be  entered  as  its  judgment,  objections  may  there  be  made. 

§   38.   Awards,  how  pleaded. 

In  Virginia  and  West  Virginia  and  a  few  other  states  an  award 
may  be  given  in  evidence  under  the  general  issue  in  assumpsit, 
debt  on  simple  contract,  and  trespass  on  the  case.  In  other  ac- 
tions it  must  be  specifically  pleaded.  Under  non-assumpsit  to  an 
action  upon  an  award  under  parol  submission,  the  defendant  may 
show  that  the  submission  was  obtained  by  fraud.49  While  an 
award  may  in  some  states  be  shown  under  the  general  issue,  an 
agreement  to  submit  cannot,  although  it  be  irrevocable.  Such  an 
agreement  is  a  matter  of  abatement  only,  and  must  be  so  pleaded.50 
If  the  submission  and  award  be  made  in  a  pending  suit,  the  award 
cannot  be  given  in  evidence  under  any  of  the  general  issues, 
as  all  pleadings  speak  as  of  the  date  of  the  writ,  and  at  that  time 
there  was  no  award.51 

§  39.    Costs. 

Where  the  submission  is  silent,  arbitrators  could  not  award 

48.  Smith   v.    Smith,   4   Rand.   95,   at   p.   101. 

49.  Bierly  v.   Williams,   5   Leigh   700. 

50.  Riley  v.  Jarvis,  43  W.  Va.  43,  26  S.  E.  366. 

51.  Austin  v.  Jones,  Gilmer  341;   Harrison  v.   Brock,  1  Munf.  22. 


32  ARBITRATION     AND    AWARD  §    39 

costs  of  arbitration  at  common  law,  but  the  weight  of  authority 
in  the  United  States  is  that  the  authority  is  incident  to  the  power 
to  make  an  award  on  the  subject  of  controversy.52 

52.  2  Am.   &  Eng.   Encl.   Law   (2nd  ed.)   693,  694. 


CHAPTER  IV. 
REMITTER  AND  RETAINER. 

§  40.   Remitter. 
§  41.  Retainer. 

Order   of  payment   of   debts. 

Order  of  liability  of  estates  for  debts. 

§   40.    Remitter. 

The  second  way  in  which  wrongs  may  be  redressed  is  by  the 
mere  act  or  operation  of  the  law.  At  common  law  this  occurred 
in  two  cases  only:  (1)  Remitter  and  (2)  retainer. 

"Remitter  is  where  he  who  hath  the  true  property  or  jus  pro- 
prietatis  in  lands,  but  is  out  of  possession  thereof,  and  hath  no 
right  to  enter  without  recovering  possession  in  an  action,  hath 
afterwards  the  freehold  cast  upon  him  by  some  subsequent,  and, 
of  course,  defective,  title ;  in  this  case  he  is  remitted,  or  sent 
back  by  operation  of  law,  to  his  ancient  and  more  certain  title. 
The  right  of  entry,  which  he  hath  gained  by  a  bad  title,  shall 
be  ipso  facto  annexed  to  his  own  inherent  good  one ;  and  his 
defeasible  estate  shall  be  utterly  defeated  and  annulled,  by  the 
instantaneous  act  of  law,  without  his  participation  or  consent."1 

§   41.    Retainer. 

"If  a  person  indebted  to  another  makes  his  creditor  or  debtee 
his  executor,  or  if  such  a  creditor  obtains  letters  of  administra- 
tion to  his  debtor ;  in  these  cases"  the  law  gives  him  a  remedy  for 
his  debt  by  allowing  him  to  retain  so  much  as  will  pay  himself, 
before  any  other  creditors  whose  debts  are  of  equal  degree.  This 
is  a  remedy  by  the  mere  act  of  law,  and  grounded  upon  this  rea- 
son :  that  the  executor  cannot,  without  an  apparent  absurdity, 
commence  a  suit  against  himself,  as  a  representative  of  the  de- 
ceased, to  recover  that  which  is  due  to  him  in  his  own  private 
capacity;  but,  having  the  whole  personal  estate  in  his  hands,  so 
much  as  is  sufficient  to  answer  his  own  demand  is,  by  operation 

1.  3    Bl.    Com.    [19]. 
—3 


34  REMITTER  AND   RETAINER  §    41 

of  law,  applied  to  that  particular  purpose.  Else  by  being  made 
executor  he  would  be  put  in  worse  condition  than  all  the  rest  of 
the  world  besides."2 

ORDER  OF  PAYMENT  OF  DEBTS. — In  Virginia  the  doctrine  of 
retainer  is  abolished  by  a  statute  prescribing  the  order  of  pay- 
ment of  the  debts  of  a  decedent.  It  is  provided  that  when  the 
assets  of  the  decedent  in  the  hands  of  his  personal  representative, 
after  the  payment  of  funeral  expenses  and  charges  of  adminis- 
tration, are  not  sufficient  for  the  satisfaction  of  all  demands 
against  him,  they  shall  be  applied : 

First:  To  the  claims  of  physicians,  druggists,  nurses  and  hos- 
pitals, respectively,  for  services  or  articles  furnished  during  the 
last  illness  of  the  decedent,  to  an  amount  not  exceeding  fifty 
dollars  in  each  case. 

Second:  To  debts  due  the  United  States  and  this  state. 

Third:  To  taxes  and  levies  assessed  against  the  decedent  pre- 
vious to  his  death. 

Fourth :  To  debts  due  as  trustee  for  the  persons  under  disabili- 
ties, as  receiver  or  commissioner  under  decree  of  court  of  this 
state,  as  personal  representative,  guardian  or  committee,  when 
the  qualification  was  in  this  state. 

Fifth :  To  all  other  demands  except  those  in  the  next  class ;  and 

Sixth:  To  voluntary  obligations. 

Debts  are  to  be  paid  in  the  above  order,  and  where  the  assets 
are  not  sufficient  to  pay  all  of  any  class  in  full,  those  of  that 
class  are  to  be  paid  ratably.3 

This  order  of  liability  of  personal  estate  for  the  debts  of  a  de- 
cedent cannot  be  destroyed  by  will  of  the  debtor.  The  rule  is 
otherwise  in  Virginia  as  to  real  estate.  At  common  law  the  real 
estate  of  a  debtor  was  not  bound,  upon  his  death,  for  his  simple 
contract  debts,  nor  for  debts  under  seal,  unless  the  heir  was  ex- 
pressly bound  by  the  instrument.  This  rule  is  changed  in  Vir- 
ginia so  as  to  make  real  estate  assets  for  the  payment  of  the  debts 
of  the  decedent,  but  the  language  of  the  statute4  is  such  as  to 
permit  a  debtor  to  give  a  preference  by  his  will,  to  such  of  his 

2.  3  Bl.  Com.  [18]. 

3.  Code,  §§  2660,  2661. 

4.  Co.de,  §  2665. 


§   41  RETAINER  35 

creditors  as  he  may  desire  to  prefer,  so  far  as  effects  his  real  es- 
tate.5 

Order  of  Liability  of  Estate,  for  Debts. — Generally,  the  per- 
sonal estate  is  the  primary  fund  for  the  payment  of  all  debts  of  a 
decedent,  and  it  will  not  be  exonerated  by  a  charge  on  the  real 
estate,  unless  there  be  express  words,  or  a  plain  intent  in  the 
will  to  make  such  exoneration.  This  is  true  even  when  there 
is  a  specific  lien  on  real  estate  for  the  debt.6  If,  however,  real 
and  personal  property  are  equally  and  expressly  charged  by  a 
testator  with  the  payment  of  his  debts  they  must  share  the  burden 
ratably.7  But  a  simple  expression  by  a  testator  in  his  will  of 
a  desire  that  all  his  just  debts  shall  be  paid  is  not  a  charge  of 
such  debts  upon  his  real  estate.8 

If  the  assets  are  not  sufficient  to  pay  the  whole  of  the  debts 
due  "the  United  States  and  this  state"  it  would  seem  that  the 
former  must  be  first  paid  in  full,  as  it  is  so  provided  by  United 
States  Statutes.9  If  the  individual  assets  of  a  partner  are  insuffi- 
cient to  pay  all  his  debts,  those  due  in  fiduciary  capacity  will 
be  preferred  to  other  individual  or  social  debts.10 

An  indebtedness  found  against  a  guardian  upon  the  settlement 
of  his  guardianship  account  does  not  cease  to  be  a  fiduciary 
debt  simply  because  the  debtor  gives  his  individual  bond  for  it,11 
but  if  the  surety  of  a  guardian  pays  a  liability  due  to  the  ward, 
and  seeks  indemnity  from  his  principal,  the  debt  as  between  the 
principal  and  his  surety  is  no  longer  a  fiduciary  debt.12  It  will 
be  observed  by  the  student  that  voluntary  bonds  may  be  enforced 
against  a  decedent's  estate,  but  the  same  is  not  true  of  a  note 
given  without  consideration. 

In  this  connection  it  may  also  be  noted  that  the  proper  order 
for  marshaling  assets  for  the  payment  of  debts  is  the  following: 

(1)   Personal  estate  at  large  not  exempted  by  the  terms  of  the 

5.  Deering  v.  Kerfoot,  89  Va.  491,  16  S.  E.  671. 

6.  New  v.   Bass,  92  Va.  383,  23   S.   E.  747. 

7.  Elliott  v.   Carter,   9   Gratt.   541. 

8.  Leavell  v.  Smith,  99  Va.  374,  38  S.  E.  202. 

9.  U.   S.   Rev.  Stats.,  §§  3466,  3467. 

10.  Robinson  v.  Allen,  85   Va.  721,   8   S.   E.  835. 

11.  Smith  v.  Blackwell,  31  Gratt.  291. 

12.  Cromer  v.   Cromer,    29    Gratt.   280. 


36  REMITTER  AND   RETAINER  §    41 

will,  or  necessary  implication.  (2)  Real  estate  or  any  interest 
therein  expressly  set  apart  by  will  for  payment  of  debts.  (3) 
Real  estate  descended  to  the  heir.  (4)  Property,  real  or  personal, 
expressly  charged  with  the  payment  of  debts,  and  then  subject 
to  such  charge,  specifically  devised  or  bequeathed.  (5)  General 
pecuniary  legacies  (ratably).  (6)  Specific  legacies  (ratably). 
(7)  Real  estate  devised.13 

13.  Elliott  v.  Carter,  9   Gratt.  541;   Frazier  v.  Littleton,   100  Va.   9, 
40   S.   E.   108. 


CHAPTER  V. 
COURTS. 

§  42.  Supervisors. 

§  43.  Clerks. 

§  44.  Justices    of   the   peace. 

1.  Civil    powers    of   justices. 

Small   claims. 

2.  Proceedings  before  a  justice  on  small   claims. 

3.  Civil   bail. 

Attachment. 

4.  Unlawful  detainer. 

5.  Garnishment. 

§  45.  Circuit  and  corporation   courts. 

Corporation  courts. 
§  46.  Civil  jurisdiction  of  court  of  appeals. 

(1)  In   matters    pecuniary. 

(2)  In   matters   not  pecuniary. 

§   42.    Supervisors. 

Boards  of  supervisors  have  the  control,  management  and  juris- 
diction of  all  county  roads,  causeways,  and  bridges,  landings  and 
wharves  erected  or  repaired  in  their  respective  counties.1  They 
have  no  jurisdiction  of  condemnation  proceedings  relating  to  mills, 
railroads  and  the  like.  These  belong  to  the  circuit  courts.  An 
appeal  of  right  lies  from  the  Board  of  Supervisors  in  case  of 
which  they  have  cognizance  to  the  circuit  court  of  the  county  and 
it  may  hear  the  case  de  novo,  with  the  further  right  of  appeal  as 
provided  by  general  law.2  The  constitution  allows  an  appeal  to 
the  Supreme  Court  of  Appeals  in  controversies  concerning  mills, 
roadways,21  ferries  and  the  like.3  The  power  of  eminent  domain 
is  a  legislative  power  to  be  exercised  by  the  legislature  as  it 
pleases,  and,  under  the  general  road  law,  there  is  an  unrestricted 
right  of  appeal  to  the  court  of  appeals,  but  it  is  within  the  power 

1.  Co.de,  §  944a   (1). 

2.  Code,   §   944a    (5). 

2a.  A  "bridle  way"  is  not  a  roadway.  Terry  v.  McClung,  104  Va. 
599,  52  S.  E.  355. 

3.  Va.   Constitution    (1902),   §   88. 


38  COURTS  §  43 

of  the  legislature  by  special  enactment  to  limit  that  right  of  appeal 
to.  judicial  questions  only.  The  power  to  condemn  property  for 
a  public  use  is  a  legislative  power  to  be  exercised  as  the  legisla- 
ture shall  direct,  but  the  ascertainment  of  the  damages  is  a  ju- 
dicial question  and  upon  this  question  the  constitution  grants  a 
right  of  appeal.4 

§   43.    Clerks. 

The  statute  declares  that  the  clerk  of  any  circuit  or  corporation 
court  may  in  term  time  or  vacation  appoint  appraisers  of  estates 
of  decedents,  admit  wills  to  probate,  appoint  and  qualify  execu- 
tors, administrators,  curators  of  decedents  and  committees,  and 
take  bonds  in  the  same  manner  as  courts.5  The  Constitution6  au- 
thorizes the  legislature  to  confer  this  power  on  the  clerks  of  the 
several  circuit  courts,  but  is  silent  as  to  any  other  clerks.  Article 
VI  of  the  Constitution  prescribes  a  complete  judicial  system  and 
no  other  courts  are  allowed  except  those  mentioned  in  that 
article.  The  legislature,  therefore,  has  no  power  to  confer  the 
jurisdiction  above  mentioned  on  the  clerks  of  any  other  court, 
and  hence  the  statute  above  mentioned,  so  far  as  it  undertakes  to 
confer  such  jurisdiction  on  clerks  of  city  courts,  is  unconstitu- 
tional. Such  clerks  are  not  within  the  terms  or  intendment  of  § 
101  of  the  Constitution,  nor  is  such  jurisdiction  conferred  by  §  98, 
authorizing  the  legislature  to  provide  "additional  courts"  for  cer- 
tain cities.  The  additional  courts  authorized  must  be  courts  of 
similar  grade,  dignity  and  jurisdiction  of  existing  city  courts.7 
An  appeal  of  right  is  allowed  from  an  order  made  by  the  clerk, 
within  one  year  (on  giving  bond  as  required  by  law)  to  the  court 
whose  clerk  made  the  order.8  Such  clerks  have  no  power  to  ap- 
point guardians,  or  to  substitute  trustees.  The  constitution  au- 
thorized the  legislature  to  confer  this  power  on  the  clerks  of  the 
several  circuit  courts,  but  it  has  not  done  so.9  The  clerks  of  the 
circuit  and  corporation  courts  may  issue  distress  warrants  for 

4.  Wilburn  v.  Raines,  111  Va.  334,  68  S.   E.  993. 

5.  Code,   §  2639a. 

6.  Va.  Constitution    (1902),  §   101. 

7.  McCurdy  v.  Smith,   107  Va.   757,  60  S.   E.   78. 

8.  Code,  §  2639a. 

9.  Va.  Constitution   (1902),  §  101. 


§    44  JUSTICES  OF  THE  PEACE  39 

rent.10  The  clerks  of  circuit  courts  of  counties  and  of  the  cir- 
cuit or  any  city  court  of  corporations  may  issue  attachments 
against  debtors  removing  their  effects  out  of  the  estate,  or  against 
tenants  removing  their  effects  from  the  leased  premises.11  They 
have  no  power  to  issue  an  attachment  holding  a  defendant  to  civil 
bail.  The  provision  with  reference  to  issuing  distress  warrants 
was  inserted  in  December,  1903.  The  constitution  is  silent  as  to 
the  power  of  the  legislature  to  enact  any  such  statute,  but  it  is 
believed  to  be  a  constitutional  enactment.  The  issuing  of  the  dis- 
tress warrant  can  hardly  be  said  to  be  a  judicial  act.  The  clerk 
does  not  hear  or  determine  anything,  but  simply  issues  the  war- 
rant, and  the  judicial  feature  of  the  case  arises  on  subsequent 
proceedings. 

§   44.    Justices  of  the  peace. 

I.  CIVIL  POWERS  OF  JUSTICES. — They  may  take  acknowledg- 
ments of  deeds  and  other  writings.12    They  may  administer  affi- 
davits when  not  of  such  a  nature  that  they  must  be  administered 
in  court.13 

SMALL  CLAIMS. — They  have  jurisdiction  of  claims  to  specific 
personal  property  or  to  any  debt,  fine,  or  other  money,  or  to  dam- 
ages for  any  breach  of  contract,  or  for  any  injury  done  to  real 
or  personal  property,  if  the  claim  to  the  fine,  does  not  exceed 
$20.00,  and  in  other  cases  "if  it  does  not  exceed  $100,  exclusive 
of  interest."  If  the  claim  be  such  as  would  bear  an  action  of  as- 
sumpsit  and  there  be  served  with  the  warrant  a  copy  of  the  ac- 
count on  which  the  warrant  is  brought,  stating  distinctly  the  sev- 
eral items  of  the  claim,  the  aggregate  amount  thereof,  the  time 
from  which  interest  is  claimed,  and  the  credits,  if  any,  to  which  the 
defendant  may  be  entitled,  and  such  account  be  verified  by  the 
affidavit  of  the  plaintiff  or  his  agent,  the  plaintiff  is  entitled  to 
judgment  unless  the  defendant  makes  a  "sworn  defence." 

If  the  claim  exceeds  $20  the  defendant  may  remove  the  case  to 
the  circuit  court  of  the  county  or  the  corporation  court  of  the 

10.  Code,   §   2790. 

II.  Code,   §§  2961   and  2962. 

12.  Code,  §  2501. 

13.  Code.  §  173. 


40  COURTS  §  44 

corporation  in  which  the  warrant  is  brought,  at  any  time  before 
trial,  "upon  affidavit  that  he  has  a  substantial  defence  thereto." 
The  justice  cannot  require  security  for  the  debt  or  costs.  When 
removed  it  cannot  be  tried  except  by  consent,  unless  it  has  been 
docketed  ten  days  previous  thereto.14 

When  removed,  the  case  is  to  be  tried  according  to  principles 
of  law  and  equity,  and  if  they  conflict,  equity  is  to  prevail.15 

The  court  may  correct  any  defects,  irregularities,  or  omissions 
in  the  proceedings  before  the  justice,  or  in  respect  to  the  form  of 
the  warrant.  The  statute  is  to  be  construed  liberally.10 

2.  PROCEEDINGS  BEFORE  A  JUSTICE  ON  SMALL  CLAIMS. — On  ap- 
plication, the  justice  issues  a  warrant  directed  to  the  sheriff,  ser- 
geant, or  constable  to  summon  the  defendant  to  appear  before 
him  or  some  other  justice  on  a  certain  day.  The  warrant  must 
be  returnable  "on  a  certain  day  not  exceeding  thirty  days  from 
the  date  thereof."  It  must  be  returnable  to  some  place  in  the 
magisterial  district  in  which  the  defendant,  or  some  one  or  more 
of  them,  if  there  be  more  than  one,  resides,  or  in  which  the 
cause  of  action  arose,  unless  the  justice  for  good  cause  shown  on 
oath  direct  it  to  be  returned  to  some  other  place  in  his  county  or 
corporation.  But  in  no  case  can  it  be  returnable  in  a  county  or 
corporation  other  than  that  in  which  the  defendants,  or  some  of 
them,  reside.  It  may  be  executed  in  any  part  of  the  county  or 
corporation.17 

If  a  corporation  or  company  be  defendant,  it  is  provided  that, 
for  the  purposes  of  this  act,  it  shall  be  construed  to  reside  in  any 
county  or  corporation  through  which  its  line  (if  it  be  a  transpor- 
tation company)  runs,  or  in  which  it  conducts  its  business.18 
There  can  be  no  trial  within  five  days  after  the  service  of  the 
warrant,  except  with  consent  of  the  parties.  If,  at  any  time  be- 
fore trial,  the  defendant  shall  make  affidavit  that  he  verily  believes 
he  cannot  obtain  justice  from  the  justice  of  the  peace  who  issued 
said  warrant,  and  before  whom  it  is  returnable,  the  said  justice 

14.  Code,  §  2939. 

15.  Code,  §  2939. 

16.  Code,  §  2939. 

17.  Code,  §  2940. 

18.  Code,  §  2940. 


§   44  JUSTICES    OF   THE    PEACE  41 

of  the  peace  who  issued  said  warrant  shall  associate  himself  with 
two  other  justices  of  the  peace  of  that  county,  who  shall  try  said 
warrant,  and  in  case  of  disagreement  of  opinion,  the  opinion  of 
the  majority  is  to  prevail.19  There  seems  to  be  no  similar  provi- 
sion for  calling  in  additional  justices  in  cities. 

The  justice  must  write  on  the  face  of  the  writing,  account,  or 
other  paper,  on  which  the  warrant  is  sued  out,  or  on  any  warrantr 
account,  or  any  other  paper  allowed  as  a  set-off,  the  date  and 
amount  of  the  judgment  and  costs,  and  affix  his  name  thereto.20 

The  justice  may  allow  a  new  trial  within  thirty  days,  but  not 
after.  The  opposite  party  must  be  present,  or  have  five  days' 
notice  of  the  application  for  the  new  trial.21 

The  justice  may  -stay  execution  for  certain  periods  upon  secu- 
rity being  given.22 

The  justice  may  allow  an  appeal  within  ten  days  to  the  cir- 
cuit court  of  the  county,  or  the  corporation  court  of  the  corpora- 
tion, where  the  matter  in  controversy,  exclusive  of  interest,  is  of 
greater  value  than  ten  dollars,  on  security  being  given  to  be  ap- 
proved by  him  "for  the  payment  of  such  judgment  as  may  be 
rendered  against  the  defendant,  and  all  costs  and  damages."  The 
verbal  acknowledgment  of  the  surety  shall  be  sufficient,  and  the 
endorsement  of  his  name  by  the  justice  on  the  warrant  is  con- 
elusive  evidence  of  such  acknowledgment.  The  appellate  court 
may  require  new  or  additional  security.23  Costs  before  the 
justice  are  no  part  of  the  amount  in  controversy,  and  are  not  to 
be  taken  into  consideration  in  determining  the  right  of  appeal.24 

The  justice  has  no  right  to  demand  that  costs  be  paid  before 
allowing  the  appeal.  In  cattle-guard  cases,  appeal  lies  for  either 
party,  regardless  of  the  amount  involved.25  If  a  judgment  is 
rendered  in  a  corporation  in  a  case  involving  the  constitutionality 
or  validity  of  a  by-law  or  ordinance  of  said  corporation,  the  ap- 

19.  Code,  §  2942. 

20.  Code,  §  2943.    ' 

21.  Code,  §  2946. 

22.  Code,  §  2947. 

23.  Code,  §§  2947-2956. 

24.  N.   &  W.  v.  Clark.  92  Va.  118,  22  S.   E.   867. 

25.  Code,  §  1294b,  cl.  20. 


42  COURTS  §  44 

peal  lies  only  to  the  circuit  court  having  jurisdiction  over  said 
corporation.26 

The  justice  may  issue  an  execution,  directed  to  the  sheriff,  ser- 
geant, or  constable,  of  any  county  or  corporation,  and  it  may  be 
executed  anywhere  within  the  county  or  corporation.  The  exe- 
cution must  be  returnable  within  sixty  days.  If  not  wholly  satis- 
fied, it  may,  within  one  year  from  the  date  of  the  judgment,  be 
returned  and  renewed  by  a  justice;  but  if  not  so  returned  and 
renewed  it  must  be  returned  to  the  clerk's  office  of  the  court  of* 
the  county  or  corporation  in  which  it  issued.27  Thereafter,  further 
executions,  if  need  be,  may  be  issued  by  the  clerk  of  the  court.28 

Appeals  from  the  justice  are  tried  in  a  summary  way  without 
pleadings  in  writing,  and  if  the  matter  in  controversy  exceed  $20 
either  party  may  require  a  jury.  All  legal  evidence  is  to  be  heard, 
whether  heard  by  the  justice  or  not,  and  if  the  judgment  is  given 
against  the  appellant,  and  his  surety,  the  execution  thereon  is  en- 
dorsed, "No  security  to  be  taken."29 

Justices  may  issue  distress  warrants  for  rent  due.  The  war- 
rant is  issued  on  affidavit  of  the  claimant  of  the  rent,  or  his  agent, 
that  the  amount  of  money  or  other  thing  to  be  distrained  for,  as 
he  verily  believes,  is  justly  due  to  the  claimant  for  rent  reserved 
upon  contract  from  the  person  from  whom  it  is  claimed.  Rent 
cannot  be  distrained  for  after  five  years  from  the  time  it  becomes 
due.30 

The  justice  or  the  clerk  of  the  circuit  or  corporation  court  may 
issue  this  warrant  for  any  amount,  however  large.  There  is  no 
trial  of  the  warrant,  but  the  warrant  itself  is  a  mandate  to  the 
officer  to  levy  the  amount.  The  defences  are  made  on  the  forth- 
coming bond.  When  motion  is  made  on  this  bond  the  defendant 
may  defend  on  the  ground  that  the  distress  was  for  rent  not  due 
in  whole  or  in  part,  or  was  otherwise  illegal.31  If  the  tenant  be 
unable  to  give  the  forthcoming  bond,  the  case  is  provided  for  by» 

26.  Code,  §  2956. 

27.  Code,  §§  2948-2949. 

28.  Code,   §   2950. 

29.  Code,  §  2957. 

30.  Code,  §  2790. 

31.  Co.de,  §  3621 


§    44  JUSTICES    OF   THE    PEACE  43 

§  3618.    On  the  general  subject  of  rents,  see  Code,  ch.  127.    As 
to  judgments  of  justices  on  forthcoming  bonds,  see  Code,  §  3625. 

3.  CIVIL  BAIL. — Justice  may  require  bail  of  the  defendant  (in 
action  or  suit)  if  he  is  about  to  quit  the  state.     It  is  a  personal 
attachment,  a  capias  ad  respond  endum.32    For  procedure  thereon, 
see  Code,  §  2992,  et  seq. 

4.  ATTACHMENT. — An  attachment  may  be  issued  by  a  justice 
of  the  peace  in  the  following  cases : 

(1)  Where  a  debtor  intends  to  remove,  or  is  removing,  or  has 
removed  his  effects  out  of  the  state  so  that  there  will  probably 
not  be  therein  effects  of  such  debtor  sufficient  to  satisfy  the  claim 
when  judgment  is  obtained  therefor,  should  only  the  ordinary 
process  of  law  be  issued  to  obtain  such  judgment.33    If  issued  in 
a  pending  suit,  the  attachment  is  returnable  to  rules,  or  to  court. 
In  other  cases,  if  the  claim  exceed  $20,  it  is  returnable  at  the  op- 
tion of  the  plaintiff  to  the  next  term  of  the  circuit  court  of  the 
county,  or  to  the  circuit  or  any  city  court  having  jurisdiction  of 
the  subject  matter    of  the  corporation  in  which  such  justice  or 
clerk  resides.     If  $20,  or  under,  it  is  returnable  before  the  jus- 
tice.34 

(2)  Where  a  tenant  intends  to  remove  or  is  removing,  or  has 
within  thirty  days  removed  his  effects  from  the  leased  premises, 
and  the  landlord,  or  his  agent,  believes  that  unless  an  attachment 
issues  there  will  not  be  left  on  such  premises  property  liable  to 
distress  sufficient  to  satisfy  the  rent  to  become  due  and  payable 
within  one  year.35 

(3)  For  a  claim  under  $20,  if  it  is  due,36  and  there  is  ground 
for  the  attachment. 

5.  UNLAWFUL  DETAINER  (but  not  unlawful  or  forcible  entry). 
— A  justice   has  jurisdiction   in   an  action   of  unlawful   detainer 
against  a  tenant,  or  any  person  claiming  under  him,  unlawfully  de- 
taining possession"  of  premises,  where  the  lease  was  originally  for 

32.  Code,  §  2991. 

33.  Code,  §  2961. 

34.  Code,  §  2965. 

35.  Code,  §  2962. 

36.  Code,  §  2988. 


44  COURTS  §  45 

not  more  than  one  year,  or  for  such  time  as  the  tenant  is  employed 
by  the  landlord  as  a  laborer.37 

6.  GARNISHMENT. — On  judgments  rendered  by  a  justice.38- 
Wages  of  a  minor  cannot  be  garnished  for  debts  of  parents.39 

§45.    Circuit  and  corporation  courts. 

The  single  court  system  prevails  in  Virginia,  and,  outside  a  few 
matters  of  minor  importance  of  which  the  tribunals  hereinbefore 
mentioned  have  exclusive  jurisdiction,  the  circuit  courts  of  the 
counties  are  the  only  courts  provided  by  law  for  counties.  In 
each  city  there  is  a  corporation  court  whose  civil  jurisdiction  is 
for  the  most  part  concurrent  with  that  of  the  circuit  court  for 
such  city.  In  the  cities  of  Richmond  and  Norfolk  there  are  sev- 
eral courts  whose  jurisdiction  is  declared  by  statute.  The  fol- 
lowing discussion  is  not  intended  to  apply  to  these  excepted  cities : 

Circuit  courts  have  original  and  general  jurisdiction  of  all  cases 
in  chancery  and  civil  cases  at  law,  except  cases  at  law  to  recover 
personal  property  or  money,  not  of  greater  value  than  $20,  exclu- 
sive of  interest,  and  except  such  cases  as  are  especially  assigned 
to  some  other  tribunal.41  Between  $20  and  $100  the  jurisdiction 
is  for  the  most  part  concurrent  with  that  of  the  justice,  but  if  the 
action  be  for  a  fine  exceeding  $20  or  for  a  personal  injury,  the 
jurisdiction  of  the  circuit  court  is  exclusive.42  Circuit  courts  also 
have  jurisdiction  of  proceedings  by  quo  warranto,  and  to  award 
writs  of  mandamus,  prohibition  and  certiorari  to  all  inferior  tri- 
bunals created  or  existing  under  the  laws  of  this  State,  and  to 
issue  mandamus  to  the  boards  of  supervisors  of  their  respective 
counties,  and  in  other  cases  in  which  it  may  be  necessary  to  pre- 
vent the  failure  of  justice  and  in  which  a  mandamus  may  issue 
according  to  the  course  of  the  common  law.  They  have  also  juris- 
diction in  all  cases  for  the  recovery  of  fees,  penalties,  or  any  cases 
involving  the  right  to  levy  and  collect  tolls  or  taxes,  or  involving 
the  validity  of  any  ordinance  or  by-law  of  any  corporation,  and 

37.  Code,  §  2716. 

38.  Code,  §  3609,  et  seq. 

39.  Code,    §    3652. 

41.  Code,  §  3058. 

42.  Code,  §  2939. 


§    45  CIRCUIT    AND    CORPORATION     COURTS  45 

also  of  all  civil  and  criminal  cases  where  an  appeal  may  be  had 
to  the  Court  of  Appeals.43 

They  also  have  original  jurisdiction  of  all  presentments,  in- 
formations and  indictments  for  felonies,  or  for  such  misdemean- 
ors as  are  made  cognizable  therein  by  statute,  and  of  the  proceed- 
ings therein.44 

Circuit  courts  may  admit  wills  to  probate,45  grant  letters  of  ad- 
ministration,40 and  appoint  guardians  for  infants,47  and  commit- 
tees for  lunatics,48  and  curators  of  estates  of  infants.49  In  the 
matters  of  appointment  of  guardians  or  curators  the  judge  may 
act  in  vacation.50  Circuit,  corporation,  and  other  courts  in  which 
a  will  is  admitted  to  probate,  or  a  deed  or  other  writing  is  or 
might  have  been  recorded,  have  jurisdiction  to  appoint  trustees 
in  the  place  of  one  or  more  who  have  died,  resigned,  removed  from 
the  state,  or  declined  to  accept  the  trust.  The  personal  represent- 
ative, however,  of  a  sole  trustee  who  has  died,  is  authorized  to 
"execute  the  trust  or  so  much  thereof  as  remained  unexecuted  at 
the  time  of  death"  of  such  trustee  "unless  the  instrument  creat- 
ing the  trust  directs  otherwise"  or  a  new  trustee  be  appointed.51 

Circuit  and  corporation  courts  may  summon  all  persons  inter- 
ested in  a  will,  require  production  of  all  testamentary  papers, 
have  a  trial  by  jury,  and  settle  all  controversies  concerning 
wills.52 

Circuit  courts  (concurrently  with  corporation  courts  in  cities) 
have  jurisdiction  of  applications  for  change  of  names.53 

An  appeal  lies  from  the  decision  of  the  justice  of  the  peace 
where  the  matter  in  controversy,  exclusive  of  interest  and  cost, 
is  greater  than  $10,  or  where  the  case  involves  the  constitution- 
ality of  a  law,  or  the  validity  of  a  by-law  or  ordinance  of  a  cor- 

43.  Code,  §  3058. 

44.  Code,  §  3058. 

45.  Code,  §  2533. 

46.  Code,  §  2639. 

47.  Code,  §  2599. 

48.  Code,    §    1700. 

49.  Code,  §  2602. 

50.  Code,   §§   2599,  2602. 

51.  Code,  §  3419. 

52.  Code,  §§  2539,  2542. 

53.  Code,  §  3138. 


46  COURTS  §  45 

poration.  If  the  case  arises  in  a  city,  the  appeal  is  to  the  corpora- 
tion court  except  where  it  involves  the  validity  of  a  by-law 
or  ordinance  of  a  corporation,  when  it  is  to  the  circuit  court.  If 
the  case  arises  outside  of  the  city,  the  appeal  is  to  the  circuit 
court.54 

Circuit  courts  have  (concurrently  with  corporation  courts)  ju- 
risdiction "to  enforce  police  regulations,  and  over  all  offences 
committed  in  any  county  within  one  mile  of  a  city."55 

It  is  provided  by  §  98  of  the  Constitution  that  "during  the  ex- 
istence of  the  corporation  or  hustings  court  (of  cities  of  less  than 
ten  thousand  inhabitants,  called  cities  of  the  second  class)  the 
circuit  court  of  the  county  in  which  such  city  is  situated  shall 
have  concurrent  jurisdiction  with  said  corporation  or  hustings 
court  in  all  actions  at  law  and  suits  in  equity."  No  statute  has 
been  enacted  in  accordance  with  this  provision,  but  it  seems  to  be 
self-executing. 

Circuit  courts  also  have  jurisdiction  of  all  cases,  civil  and  crimi- 
nal, which  were  existing  or  pending  in  the  respective  county  courts 
for  the  counties,  on  January  31,  1904,  and  appellate  jurisdiction 
in  all  cases,  civil  and  criminal,  "where  an  appeal  may,  as  provided 
by  law,  be  taken  or  allowed  by  the  said  court  or  the  judge  thereof, 
from  or  to  the  judgment  or  proceeding  of  any  inferior  tribunal." 

"They  shall  have  appellate  jurisdiction  of  all  cases,  civil  and 
criminal,  where  an  appeal,  writ  of  error,  or  supersedeas  may,  as 
provided  by  law,  be  taken  to  or  allowed  by  the  said  courts  or  the 
judges  thereof,  from  or  to  the  judgment  or  proceedings  of  any  in- 
ferior tribunal.  They  shall  also  have  jurisdiction  of  all  other 
matters,  civil  and  criminal,  made  cognizable  therein  by  law;  and 
where  a  motion  to  recover  money  is  allowed  in  said  courts  other 
than  under  §  3211,  they  may  hear  and  determine  the  same,  al- 
though it  be  to  recover  less  than  twenty  dollars ;  provided,  how- 
ever, that  no  circuit  court  shall  have  original  or  appellate  juris- 
diction in  criminal  cases  arising  within  the  territorial  limits  of 
any  city  wherein  there  is  established  by  law  a  corporation  or 
hustings  court."55a 

54.  Code,  §§  2947,  2956. 

55.  Code,  §  3055. 
55a.  Code,  §  3058. 


§    45  CIRCUIT    AND    CORPORATION    COURTS  47 

Under  a  general  statute56  all  jurisdiction  vested  in  the  county 
courts  on  January  31,  1904,  is  vested  in  and  imposed  upon  the 
circuit  courts.  This  would  embrace  the  following: 

(1)  Motions  on  bonds  returned  to  or  filed  in  the  county  court 
or  its  clerk's  office,  or  given  to  any  sheriff,  sergeant  or  constable.57 

(2)  Motions  for  awards  of  executions  on  bonds  for  the  forth- 
coming of  property  taken  on  distress  warrants,58  and  also  mo- 
tions for  sale  of  property  attached  or  levied  on,  or  for  rent  re- 
served in  part  of  the  crop.59 

(3)  Injunctions  to  restrain  the  removal  of  crops  upon  which 
advancements  have  been  made.60 

(4)  Interpleader  proceedings  to  try  the  title  to  property  levied 
on  under  a  distress  warrant,  or  fi.  fa.61 

(5)  Mandamus  in  respect  of  any  matters  arising  before  the 
board  of  supervisors  of  a  county.62 

(6)  Forcible   or  unlawful    entry,  or  unlawful    detainer,63  and 
other  matters  not  here  enumerated. 

Corporation  courts  "have  the  same  jurisdiction  within  their 
territorial  limits  as  the  circuit  courts  have  in  counties  for  which 
they  are  established."  They  also  have  jurisdiction  for  the  ap- 
pointment of  electoral  boards,  and  such  other  jurisdiction  as  may 
be  conferred  upon  them  by  law ;  but  these  provisions  do  not  apply 
to  the  courts  of  the  city  of  Richmond,  nor  to  the  law  and  chan- 
cery court  of  the  city  of  Norfolk.64 

The  jurisdiction  of  the  corporation  court  of  the  city  of  Lynch- 
burg  extends  one  mile  beyond  the  city  limits.65 

The  legislature  has  no  power  to  allow  an  appeal  from  a  cor- 
poration to  a  circuit  court  in  any  case,  as  the  constitution  makes 
the  two  courts  of  equal  dignity  and  co-ordinate  jurisdiction.66 

56.  Code,  §  3058b. 

57.  'Code,  §  3210. 

58.  Code,  §§  900,   3210,  3619. 

59.  Code,  §  2795. 

60.  Code,  §  2495. 

61.  Co.de,  §  2999. 

62.  Code,  §  3046. 

63.  Code,  §  2716. 

64.  Code,  §  3055. 

65.  Code,    §    3067a. 

66.  Watson  -v.  Blackstone,  98  Va.  618,  38  S.  E.  939. 


48  COURTS  §  46 

§   46.    Civil  jurisdiction  of  Court  of  Appeals. 

The  court  of  appeals  has  original  jurisdiction  in  cases  of  habeas 
.corpus,  mandamus,  and  prohibition,  but  not  quo  it>arranto.GGii 
It  has  appellate  jurisdiction  in  the  following  cases: 

(1)  In  matters  pecuniary.    Where  the  amount  in  controversy, 
exclusive  of  costs,  is  not  less  in  value  and  amount  than  $300. 

(2)  In  matters  not  pecuniary.    Here  the  amount  is  wholly  im- 
material.   The  court  has  jurisdiction  in  civil  cases  at  law  of  an  ap- 
peal from   any  judgment  or   order  in  controversy   concerning  the 
title  to  or  boundaries  of  land,  the  condemnation  of  property,  the 
probate  of  a  will,  the  appointment  or  qualification  of  a  personal 
representative,  guardian,  committee,  or  curator,  or  concerning  a 
mill,  roadway,  ferry,  wharf,  or  landing,  or  the  right  of  the  state, 
county,  or  municipal  corporation  to  levy  tolls  or  taxes,  or  involv- 
ing the  construction  of  any  statute,  ordinance,  or  county  proceed- 
ing imposing  taxes.     It  also  has  jurisdiction  in  case  of  appeal 
from  any  final  order,  judgment,  or  finding  of  the  State  Corpora- 
tion Commission,  irrespective  of  the  amount  involved,  except  the 
action  of  the  said  commission  in  ascertaining  the  value  of  any 
property  or  franchise  of  a  railroad  or  canal  company,  for  the  pur- 
pose of  taxation  and  assessing  taxes  thereon.     It  has  jurisdiction 
also  of  appeals  from  an  order  of  a  judge  or  court  refusing  a  writ 
of  quo  warrant o,  or  a  final  judgment  on  said  writ,  and  the  Com- 
monwealth has  an  appeal  from  the  action'  of  the  said  corporation 
commission  in  all  cases,  irrespective  of  the  amount  involved.    No 
appeal  lies  from  the  judgment  of  a  circuit  or  corporation  court 
rendered  on  an  appeal  from  the  judgment  of  a  justice,  except  in 
cases  where  it  is  otherwise  expressly  provided.67     It  also  has  ju- 
risdiction of  cases  involving  the  constitutionality  of  a  statute,  but 
if  the  validity  of  the  statute  be  drawn  in  question  before  a  jus- 
tice of  the  peace,  there  must  be  first  an  appeal  to  the  circuit  court 
of  the   county  on   the  corporation   of  the   city.    There  is   no  di- 
rect appeal  from  the  justice  to  the  Court  of  Appeals.67a 

66a.  Watkins  v.  Venable,  99  Va.  440,  39  S.  E.  147. 
67.  Code,    §§    3454,    3455. 

67a.  Va.   Constitution   §   88;    Southern    R.   Co.  v.   Hill,   106  Va.   501, 
.56  S.   E.  278. 


CHAPTER  VI. 

PARTIES  TO  ACTIONS. 

§  47.  Proper  parties  to  actions  ex  contractu  generally. 

§  48.  Joint  and  several  contracts. 

§  49.  Proper  parties   to  actions   ex   delicto   generally. 

§  50.  Assignees  of  contracts. 

§  51.  Assignees   of  rights   of  actions  for  torts. 

§  52.  Joint  tortfeasors. 

§  53.  Actions   by   and   against   court   receivers. 

§  54.  Partnership. 

§  55.  Executors   and   administrators. 

§  56.  Corporations. 

§  57.  Infants. 

§  58.  Insane    persons. 

§  59.  Married   women. 

§  60.  Unincorporated  associations. 

§  61.  Death  by  wrongful  act. 

§  62.  Undisclosed   principal. 

§  63.  Convicts. 

§  64.  Official    and    statutory    bonds. 

§  65.  Change   of   parties. 

§  66.  Misjoinder  and  non-joinder  of  parties. 

Too  many  or  too   few  plaintiffs   or   defendants.     Mode   of 
taking  the   objection  at  common  law. 

1.  Actions   ex  contractu. 

2.  Actions  ex  delicto. 

§   47.    Proper  parties  to  actions  ex  contractu  generally. 

The  following  succinct  statement  is  made  by  Professor  Minor  :x 

"In  actions  ex  contractu  the  general  principle  is  that  the  action 
must  be  brought  by  the  person  who  has  the  legal  title  to  the  benefit 
of  a  contract,  inasmuch  as  a  court  of  law  does  not  usually  take 
cognizance  of  an  equitable  title.  But  this  principle,  which  was 
once  universal,  has,  in  process  of  time,  in  personal  actions,  come 
to  be  subject  to  many  exceptions.  Thus,  in  contracts  not  under 
seal,  it  has  been  held,  for  two  centuries  or  more,  that  any  one  for 
zi'iwse  benefit  the  contract  was  made  may  sue  upon  it;  that  is,  if 

1.  4  Min.  Inst.,  pp.  450-451. 
—4 


50  PARTIES   TO   ACTIONS  §    47 

A  promises  Z,  not  under  seal,  but  for  valuable  consideration,  to 
pay  B  $1,000,  B  may  in  his  own  name  maintain  an  action  against 
A.2  But  where  the  promise  is  under  the  seal  of  the  promisor,  the 
common  law  never  relaxed  its  requirement  that  the  action  should 
be  brought  by  the  promisee  alone,  or  his  personal  representative, 
and  not  by  any  one  for  whose  benefit,  ever  so  expressly,  the  prom- 
ise was  made;  a  rule  which  is  particularly  inflexible  where  the 
deed  is  an  indenture  or  inter  paries.  Thus,  if  in  a  deed  indented, 
'between  A  of  the  first  part  and  Z  of  the  second  part/  there  be 
contained  a  stipulation  that  Z  should  pay  C  $1,000,  C  can  main- 
tain no  action  for  the  money ;  and  even  if  it  be  a  deed  poll, 
whereby  Z  stipulates  with  A  that  he  will  pay  C  $1,000,  the  better 
opinion  is  that  at  common  law  no  action  is  maintainable  by  C.3 
Here,  however,  our  statute  law  has  intervened,  and  permits  the 
beneficiary  to  assert  his  merely  equitable  title  in  his  own  name,  in 
a  Court  of  Law,  in  both  of  the  cases  last  stated.  'If  a  covenant 
or  promise,'  says  the  statute,  'be  made  for  the  sole  benefit  of  a 
person  with  whom  it  is  not  made,  or  with  whom  it  is  jointly  made 
with  others,  such  person  may  maintain  in  his  own  name  any  action 
thereon  which  he  might  maintain  in  case  it  had  been  made  with 
him  only,  and  the  consideration  had  moved  from  him  to  the  party 
making  such  covenant  or  promise.'  "4 

Whatever  may  have  been  the  rule  at  the  ancient  common  law 
with  reference  to  a  deed  poll  where  Z  stipulates  with  A  that  he 
will  pay  C  $1,000,  it  has  been  held  several  times  in  Virginia  that 
even  at  common  law  and  independently  of  statute,  the  beneficiary 
C  could  maintain  an  action  in  his  own  name.  It  is  said  that  such 
beneficiaries  not  described  as  parties  in  deeds  poll,  or  even -men- 
tioned as  having  a  beneficial  interest  therein,  may  sue  thereon  in 
their  own  names  if  it  manifestly  appears  that  the  covenants  were 
made  for  their  benefit,  but  the  beneficiary  must  be  pointed  out  and 
designated  in  the  instrument,  though  it  is  not  necessary  that  his 
name  should  in  terms  be  used.4a 

2.  1  Chit.  PI.  4,  5. 

3.  1  Chit.   PI.  3,  4;   Ross  v.  Milne  et  ux,  12  Leigh  204,  218,  et  seq. 

4.  Code,  §  2415;  3  Rob.  Pr.  (2nd  ed.),  14,  et  seq.;  Jones  v.  Thomas, 
21  Gratt.  101-102;  Clemmitt  v.  N.  Y.  Ins.  Co.,  76  Va.  355. 

4a.  Jones  v.  Thomas,  21  Gratt.  96,  100;  Newberry  Land  Co.  v. 
Newberry,  95  Va.  119,  27  S.  E.  899,  and  cases  cited. 


§   48  JOINT    AND    SEVERAL    CONTRACTS  51 

A  different  rule,  however,  prevails  as  to  a  deed  inter  paries. 
Such  a  deed  was  only  available  between  the  parties  to  it  and  their 
privies,  and  a  third  person  (beneficiary),  though  expressly  men- 
tioned in  the  deed,  if  not  a  party  to  it,  could  maintain  no  action 
upon  it  in  his  own  name.  The  reason  is  set  forth  by  Judge  Stap- 
les in  Jones  v.  Thomas,  supra.  It  is  said  that  the  Virginia  stat- 
ute "does  not  enable  one  who  is  not  a  party  to  a  deed  to  main- 
tain an  action  thereon  unless  he  is  plainly  designated  by  the  m- 
strument  as  the  beneficiary  and  the  covenant  or  promise  is  made 
for  his  sole  benefit."5  It  would  seem  from  these  cases  that  if 
the  beneficiary  in  a  deed  poll  was  named  in  the  deed  or  definitely 
pointed  out,  he  might  maintain  an  action  thereon  in  his  own  name, 
but  under  no  other  conditions,  and  the  effect  of  the  Virginia  stat- 
ute above  quoted  seems  to  be  to  put  deeds  inter  partes  on  the  same 
footing  with  deeds  poll  in  this  respect,  but  does  not  seem  to  have 
extended  the  common-law  rule  any  further. 

In  discussing  the  subject  of  parties  to  actions,  it  must  be  borne 
in  mind  that,  no  matter  what  the  form  of  action  may  be,  whether 
in  tort  or  contract,  all  proceedings  in  court  must  be  by  and  against 
living  parties.  This  rule  applies  to  appellate  courts  as  well  as  to 
trial  courts.  Usually,  if  there  are  more  parties  than  one  on  a 
side,  and  one  dies,  the  action  survives  for  or  against  the  living 
party.  If  there  is  only  one  party  on  a  side,  and  the  action  is  one 
which  survives,  it  may  be  revived  by  or  against  the  representative 
of  the  decedent.  If  a  sole  party  dies  before  action  brought,  the 
action  should  be  brought  by  or  against  his  representative.  There 
can  be  no  such  thing  as  an  action  by  or  against  one  who  is  dead.5* 

§   48.    Joint  and  several  contracts. 

A  contract  may  be  joint  only,  as  where  all  of  the  parties  to  the 
contract  jointly  promise  to  do  a  particular  thing;  or  it  may  be 
joint  and  several,  as  where  by  the  terms  of  the  contract  the 
parties  jointly  and  severally  promised  to  do  a  particular  thing; 
and  it  has  been  held  that  a  contract  which  begins  "I  promise  to 
pay"  signed  by  more  than  one  is  joint  and  several.6  If  the  con- 

5.  Newberry  Land  Co.  v.  Newberry,  95  Va.  119,  27  S.  E.  899. 

5a.  4  Minor's  Inst.  975,  977;  Booth  v.  Dotson,  93  Va.  233,  24  S.  E. 
935. 

6.  Holman  v.  Gilliam,  6  Rand.  39. 


52  PARTIES   TO   ACTIONS  §    48 

tract  be  joint  and  several,  a  single  action  may  be  brought  against 
all  or  several  actions  may  be  brought  against  each  one,  but  gen- 
erally there  can  be  no  action  against  an  intermediate  number  if 
there  be  more  than  two.  An  exception,  however,  has  been 
made  to  this  rule  by  the  statute  in  Virginia  as  to  negotiable 
instruments.  The  statute  provides  that  an  action  of  debt  or 
assumpsit  may  be  maintained  and  judgment  given  jointly 
against  all  liable,  whether  drawers,  endorsers  or  acceptors,  or 
against  any  one,  or  any  intermediate  number  of  them.7  Further- 
more, §  68  of  the  Negotiable  Instruments  Act  declares  that  joint 
payees  or  joint  endorsees  who  endorse  are  deemed  to  endorse 
jointly  and  severally.8  If  the  obligation  is  joint  only,  and  one 
of  the  parties  dies,  the  survivor  only  was  liable  at  common  law 
and  the  estate  of  the  decedent  was  discharged  except  in  equity. 
But  by  statute  in  Virginia  this  has  been  changed  so  that  the 
personal  representative  of  the  decedent  may  still  be  sued  in  an 
action  at  law,  but  the  action  would  be  a  separate  and  inde- 
pendent action  against  the  personal  representative.9  A  further 
exception  to  the  general  rule  that  joint  contractors  can  only  be 
sued  jointly  has  been  made  by  statute  in  Virginia  in  a  proceed- 
ing by  motion,  instead  of  a  regular  action.  If  the  proceeding  be  by 
motion  for  a  judgment  under  §  3211  of  the  Code,  although  the 
contract  be  joint  only,  the  proceeding  may  be  against  all  or 
any  one  or  any  intermediate  number,  and  also  against  the  per- 
sonal representative  of  such  as  .are  dead.10 

At   common   law,   a   judgment   against   one   of    several    joint 

7.  Code,  §  2853. 

8.  Co.de,  §  2841a. 

9.  Code,  §  2855. 

10.  Section  3212  of  the  Code  is  as  follows:  "A  person  entitled  to 
obtain  judgment  for  money  on  motion,  may,  as  to*  any,  or  the  per- 
sonal representatives  of  any  person  liable  for  such  money,  move 
severally  against  each,  or  jointly  against  all,  or  jointly  against  any 
intermediate  number;  and  when  notice  of  his  motion  is  not  served 
on  all  of  those  to  whom  it  is  directed,  judgment  may  nevertheless 
be  given  against  so  many  of  those  liable  as  shall  appear  to  have 
been  served  with  the  notice:  Provided,  that  judgment  against  such 
personal  representatives  shall,  in  all  cases,  be  several.  Such  mo- 
tio.ns  may  be  made  from  time  to  time  until  there  is  judgment  against 
every  person  liable,  or  his  personal  representative." 


§    48  JOINT   AND   SEVERAL   CONTRACTS  53 

contractors  was  a  bar  to  any  action  against  the  others,  but  this 
has  been  materially  changed  by  statute  in  Virginia:  (1)  By 
§  3212,  cited  in  the  margin,  where  the  proceeding  is  by  motion 
for  judgment.  The  statute  permits  the  proceeding  to  be  against 
each,  all,  or  any  intermediate  number,  even  on  a  joint  contract, 
and  provides  that  the  motions  may  be  made  from  time  to  time 
until  there  is  judgment  against  every  person  liable  or  his  per- 
sonal representative;  (2)  where  the  action  is  brought  on  nego- 
tiable paper  under  §  2853,  allowing  an  action  against  all,  any  one, 
or  any  intermediate  number;  (3)  under  §  3396  quoted  in  the 
margin,  where  the  plaintiff  is  expressly  allowed  to  proceed  to 
judgment  as  to  defendants  served,  and  either  to  discontinue  as 
to  others,  or  proceed  to  judgment  from  time  to  time  against 
them  as  the  process  is  served.11  In  Judge  Burks'  address  before 
the  Bar  Association  in  July,  1891,  it  is  said:  "It  had  been  de- 
clared by  the  Court  of  Appeals  that,  in  an  action  ex  contractu 
against  several  defendants,  if  the  action  was  discontinued  as  to 
one  on  whom  the  process  was  not  served,  and  judgment  ren- 
dered against  the  other  on  whom  it  was  served,  the  judgment 
was  a  bar  to  a  subsequent  action  for  the  same  cause  against 
the  defendant  as  to  whom  the  former  action  had  been  discon- 
tinued.12 The  Code  provides  that  the  discontinuance  shall  not 
operate  as  such  a  bar."13  In  Corbin  v.  Bank,  87  Va.  661,  13. 
S.  E.  98,  it  is  said  that  the  discontinuance  provided  for  by 
this  section  is  a  discontinuance  as  against  one  or  more  defend- 
ants upon  whom  process  had  not  been  served,  and  there  is  a 
plain  intimation  that  the  common-law  rule  still  prevails  if  the 
discontinuance  is  after  service  of  process.  The  point  has  not 
been  directly  decided.  In  Cahoon  v.  McCulloch,  92  Va.  177,  23  S. 

11.  Section  3396  of  the  Code  is  as  follows:    "Where,  in  any  action 
against   two   or   more   defendants,    the   process    is    served   on    part   of 
them,  the  plaintiff  may  proceed  to  judgment  as  to  any  so  served,  and 
either  discontinue  it  as   to  the  others,  or  from  time  to  time,  as  the 
process  is  served  as  to  such  others,  proceed  to  judgment  as  to  them 
until    judgments    be    obtained    against    all.      Such    discontinuance    of 
the   action   as   to   any   defendant   shall   not   operate   as   a    bar   of   any 
subsequent  action  which   may  be   brought  against  him  for  the   same 
cause." 

12.  Beazly  v.   Sims,  81  Va.  644. 

13.  Code,  §  3396. 


54  PARTIES   TO   ACTIONS  §    48 

E.  225,  the  proceeding  was  by  motion  under  §  3212.  This  sec- 
tion makes  no  mention  of  a  dismissal  after  service,  but  it  was 
held  that  such  dismissal  did  not  work  a  discontinuance  and 
although  reference  is  made  in  the  latter  case  to  important  changes 
made  by  §§  3395  and  3396  of  the  Code,  the  decision  is  rested 
on  the  language  of  §  3212.  Under  the  very  broad  language  of 
§§  3395  and  3396,  it  is  doubtful  at  least  whether  a  dismissal 
after  service  would  operate  a  discontinuance  of  a  regular  action 
any  more  than  it  would  of  a  motion  under  §  3212,  though  it 
is  not  to  be  forgotten  that  §  3212  gives  an  action  against  all, 
or  any  one,  or  any  intermediate  number  on  a  joint  contract.  In 
the  last  mentioned  case,  Riley,  Judge,  said :  "The  statute  declares 
in  effect  that  there  shall  be  no  merger  of  the  original  cause 
of  action  until  there  has  been  a  judgment  against  every  person 
liable  to  a  recovery  on  it."  If  the  contract  be  both  joint  and  sev- 
eral, of  course  a  judgment  against  one  is  no  bar  to  an  action 
against  any  other,  because  the  judgment  is  in  strict  accord  with  the 
contract  of  the  parties ;  but  if  there  has  been  judgment  against  one, 
there  cannot  thereafter  be  another  judgment  against  all,  nor  if 
there  has  been  judgment  against  all  can  there  thereafter  be  judg- 
ment against  any  one  separately.14  Subject  to  the  qualifications 
above  stated,  parties  jointly  bound  by  contract  can  only  be  sued 
jointly,  and  it  is  a  valid  ground  of  objection  if  any  of  them  are 
omitted.  In  the  absence  of  statute,  the  mere  fact  that  a  claim  is 
barred  by  the  act  of  limitations  as  to  one  of  several  joint  con- 
tractors, or  that  he  has  a  personal  defence,  or  that  he  is  not  a 
resident  of  the  state,  is  generally  no  reason  why  he  should  not  be 
joined.  He  may  be  willing  to  waive  his  personal  defence.  It  has 
been  held  in  Virginia  that  the  failure  to  join  an  infant  joint  con- 
tractor as  defendant  is  error.15  But  it  is  provided  by  statute 
that  no  plea  in  abatement  for  non-joinder  of  a  defendant  shall 
be  allowed  unless  it  be  stated  in  the  plea  that  he  is  a  resident 
of  this  state  and  the  place  of  his  residence  be  stated  with  con- 
venient certainty  in  the  affidavit  verifying  the  plea.15a 

14.  See    Graves'    Notes    on    Pleading,    7-14,    as    to    all    matters    em- 
braced in  this  section. 

15.  Walmsley  v.   Lindenberger,   2   Rand.  478 
15a.  Code,    §    3261. 


§   49      PROPER  PARTIES  TO  ACTIONS  EX  DEUCTO  GENERALLY  55 

§  49.    Proper  parties  to  actions  ex  delicto  generally. 

Professor  Minor  makes  the  following  statement  :16  "In  actions 
c.\'  delicto  the  same  general  principle  prevails  as  in  actions  ex 
contracts,  namely,  that  the  action  must  in  general  be  brought 
in  the  name  of  the  person  whose  legal  right  has  been  affected, 
and  who  was  legally  interested  in  the  property  to  which  the 
tort  relates  at  the  time  the  tort  was  committed.17  Thus  a  cestui 
que  trust,  or  other  person  having  only  an  equitable  interest,  can- 
not, for  the  most  part,  sue  in  the  courts  of  common  law,  either 
his  trustee  or  a  third  person,  unless  in  cases  where  the  action 
is  against  a  mere  wrongdoer,  and  for  an  injury  to  the  actual 
possession  of  the  cestui  que  trust.18  Indeed,  wherever  one  is 
in  possession,  notwithstanding  he  may  have  only  an  equitable 
title,  when  that  possession  is  invaded,  as  it  is  by  a  trespass 
upon  the  land,  a  legal  wrong  may  fairly  be  considered  as  having 
been  committed  against  him,  so  as  to  qualify  him  to  sue  there- 
for in  a  court  of  law.19 

"The  proper  defendants  in  actions  ex  delicto  are  those  in 
general  who  committed  the  tort,  whether  by  their  own  hands  or 
by  the  hands  of  others.  Even  an  infant  may  be  made  respon- 
sible for  torts,  as  corporations  may  also  be.20 

"\Yhen  the  defendant  has  occasion  to  invoke  his  own  title 
to  the  subject,  as  a  defence  to  the  alleged  tort,  the  title  must 
in  general  be  as  much  a  legal  title  as  if  he  was  founding  an  ac- 
tion upon  it,  and  for  the  same  reason,  that  is  to  say,  that  as  a 
general  rule,  a  court  of  law  will  not  take  cognizance  of  a  title 
merely  equitable.  Thus,  if  the  defendant,  in  an  action  of  eject- 
ment, relies  upon  his  own  better  title,  it  must  usually  be  a  legal 
title,  and  if  not,  his  defence,  if  it  is  available  anywhere,  must 
be  made  in  a  court  of  equity." 

Torts  are  in  their  nature  joint  and  several,  and  it  is  so 
universally  conceded  that  the  injured  party  has  the  right  to  sue 
all,  or  any  one,  or  any  intermediate  number  of  the  tortfeasors, 
that  it  is  not  deemed  necessary  to  cite  authorities  to  sustain 

16.  4  Min.   Inst.  452. 

17.  1  Chit.  PI.  69,  et  seq. 

18.  1  Chit.   PI.  69. 

19.  1  Chit.   PI.  202,   203. 

20.  1  Chit.   PI.  87.   ct  seq. 


56  PARTIES  TO   ACTIONS  §    50 

the  proposition.  In  England,  a  judgment  against  one  tortfeasor, 
although  not  satisfied,  merges  the  entire  cause  of  action  against 
the  others,21  and  Virginia,  following  an  early  case,  has  adopted 
the  same  rule.22  But  the  rule  that  a  judgment  without  satisfac- 
tion merges  the  cause  of  action  as  against  other  wrongdoers  is 
repudiated  well  nigh  universally  in  the  United  States.  In  nearly, 
or  quite  all  of  the  states,  it  is  held  that  judgment  against  one 
must  be  satisfied  in  order  to  bar  an  action  against  the  others.2'"' 

§  50.    Assignees  of  contracts. 

At  common  law  the  assignee  of  a  contract  could  not  sue 
thereon  in  his  own  name.  The  doctrine  that,  in  the  absence 
of  statute,  an  assignee  of  a  contract  cannot  sue  thereon  in  his 
own  name  is  fully  sustained  by  Glenn  v.  Marbury,  145  U.  S. 
499,  507,  holding  that  where  an  insolvent  corporation  had  as- 
signed all  of  its  assets  to  a  trustee,  an  action  to  collect  unpaid 
calls  on  stock  must  be  brought  in  the  name  of  the  company, 
and  that  the  trustee  cannot  sue  in  his  own  name.  The  assign- 
ment does  not  pass  the  legal  title.  In  order  to  sue  at  law,  he 
is  required  to  sue  in  the  name  of  the  assignor,  but  this  has  been 
changed  by  statute  in  Virginia,  which  allows  the  action  to  be 
brought  by  the  assignee  or  beneficial  owner  of  any  bond,  note, 
writing,  or  other  chose  in  action  not  negotiable,  in  his  own  name.24 
The  rule,  of  course,  was  and  is  different  as  to  negotiable  paper, 

21.  Brinsmead  v.  Harrison,  L.  R.  7  C.  P.  547. 

22.  Petticolas  v.   City  of  Richmond,  95  Va.  456,  28   S.   E.  566. 

23.  Lovejoy  v.  Murray,  3  Wall.  10;   Griffin  v.   McClung,  5  W.  Va. 
131;  Miller  v.  Hyde,  161  Mass.  473,  42  Am.  St.  Rep.  424,  and  note. 

24.  Section    2860    of    the    Code    is    as    follows:      "The    assignee    or 
beneficial   owner   of  any   bond,   note,   writing  or   other   chose   in   ac- 
tion,   not    negotiable,    may   maintain    thereon    in    his    own    name    any 
action  which  the  original  obligee,  payee,  or  contracting  party  might 
have    brought,   but    shall    allow   all   just    discounts,    not    only   against 
himself,   but   against   such    obligee,   payee,   or   contracting  party,    be- 
fore the  defendant  had  notice  of  the  assignment  or  transfer  by  such 
obligee,   payee,   or   contracting  party,   and    shall   also   allow   all    such 
discounts  against  any  intermediate  assignor  or  transferrcr,  the  right 
to   which   was   acquired   on   the   faith   of  the   assignment   or   transfer 
to   him  and  before   the   defendant   had    notice   of  the   assignment   or 
transfer  by  such  assignor  or  transferrer  to  another." 


§    50  ASSIGNEES  OF   CONTRACTS  57 

for  the  endorsement  of  such  paper,  whether  made  before  or 
after  maturity,  carries  the  legal  title,  and  the  holder  of  such 
paper  has  no  right  to  sue  thereon  in  the  name  of  the  payee 
who  has  endorsed  the  paper,  or  of  any  prior  endorser.  The 
holder  of  such  paper  has  both  the  legal  and  equitable  title  and 
sues  in  his  own  name.  As  to  common-law  paper,  the  assignee 
is  allowed  by  statute  to  assert  his  equitable  title  in  his  own 
name  at  law.  But  the  statute  expressly  provides  that  he  shall 
allow  all  just  discounts,  not  only  against  himself,  but  against 
the  obligee,  payee  or  contracting  party  before  the  defendant  had 
notice  of  the  assignment.  It  will  be  observed  that  the  statute 
extends  this  right  not  only  to  the  assignee,  but  to  the  beneficial 
owner  of  any  chose  in  action.  It  might  be  doubted  whether  an 
open  account  was  in  its  nature  such  a  paper  as  is  the  subject 
of  an  assignment,  but  it  has  been  held  that  it  is.25  However  this 
may  be,  the  language  of  the  statute  is  broad  enough  to  cover 
the  case  of  the  beneficial  owner  of  the  account,  and  he  may 
sue  thereon  in  his  own  name,  though  not  a  formal  assignee. 
The  action  may  be  brought  at  the  option  of  the  assignee  in  his 
own  name,  or  in  that  of  the  assignor.  If  brought  in  the  name 
of  the  assignee,  then  the  declaration  must  set  forth  the  assign- 
ment so  as  to  trace  title  in  the  plaintiff.  If  brought  in  the 
name  of  the  assignor,  the  beneficiary  need  not  be  mentioned 
at  all,  but  the  action  may  be  brought  in  the  name  of  the  as- 
signor for  the  benefit  of  the  assignee;  or  if  originally  brought 
in  the  name  of  the  assignor,  the  fact  that  there  is  a  beneficiary 
may,  pending  the  action  or  afterwards,  be  endorsed  on  the  writ 
or  declaration.  The  declaration  may  be  amended  and  the  name 
of  the  beneficial  plaintiff  inserted,  even  after  verdict.26  If  in 
any  way  it  is  made  to  appear  that  there  is  a  beneficiary  other 
than  the  plaintiff  on  the  record,  and  there  is  judgment  for  the 
defendant,  judgment  for  costs  will  be  against  the  beneficial  plain- 
tiff, and  not  the  nominal  plaintiff.  The  assignment  need  not 
be  in  writing  even  though  the  obligation  assigned  be  under 
seal,  but  if  the  action  be  by  an  assignee  against  the  assignor,  the 
assignment  must  be  supported  by  a  valuable  consideration.  If 

25.  Porter  v.  Young,  85  Va.  49,  6  S.   E.   803. 

26.  Kain  v.  Angle,  111  Va.  415,  69  S.  E.  355. 


58  PARTIES  TO  ACTIONS  §    51 

the  action  be  brought  in  the  name  of  the  assignor,  upon  proper 
indemnity  to  him  for  costs,  he  will  not  be  allowed  in  any  way 
to  obstruct  or  interfere  with  the  prosecution  of  the  action. 

While  the  owner  of  a  non  negotiable  chose  in  action  is  per- 
mitted to  assign  it,  the  assignment  must  be  of  the  whole  debt.  He 
cannot  split  up  his  demand  and  assign  a  portion  of  it  to  one 
person  and  another  portion  to  another  so  as  to  enable  them  to 
maintain  separate  actions  for  their  different  portions.  If  partial 
assignments  have  been  made,  the  action  must  be  in  the  name 
of  the  assignor.  A  single  cause  of  action  arising  on  an  entire 
contract  cannot  be  divided  by  partial  assignments  so  as  to  en- 
able each  assignee  to  sue  for  the  part  assigned.28 

Although  the  Virginia  statute  has  enlarged  the  rule  of  the 
common  law  so  as  to  make  a  chose  in  action  assignable,  and 
authorized  the  assignee  to  maintain  in  his  own  name  any  ac- 
tion which  the  original  obligee  might  have  brought,  it  does  not 
create  any  new  cause  of  action.  Hence,  the  assignment  of  a 
chose  in  action  does  not  invest  the  assignee,  as  an  incident,  with 
a  right  against  a  third  party  to  recover  damages  for  an  injury 
which  occurred  prior  to  the  assignment.  A  prior  accrued  right 
to  sue  a  sheriff  and  his  sureties  for  a  failure  to  return  a 
delivery  b.ond  and  thereby  create  a  lien  on  the  land  of  the 
sureties  does  not  pass  as  an  incident  to  the  assignment  of  the 
original  judgment.29  This  rule,  however,  is  qualified  to  the 
extent  that,  if  a  debtor  has  transferred  his  property  without 
consideration  to  the  prejudice  of  his  creditors  who  have  the 
right  to  avoid  the  conveyance,  the  right  to  avoid  the  conveyance 
passes  with  the  assignment  by  the  creditor  to  the  assignee  of 
the  debt.30 

§  51.  Assignees  of  rights  of  actions  for  torts. 

If  the  tort  is  purely  personal,  it  is  not  the  subject  of  assign- 
ment. The  maxim,  actio  personalis  moritur  cum  persona  applies. 
Whether  or  not  the  tort  is  purely  personal  will  be  determined 
by  the  court,  looking  to  the  substance  of  the  action  rather 
than  to  its  form;  and,  although  the  tort  may  arise  out  of  con- 

28.  Phillips  v.   Portsmouth,  112  Va.  — ,  70  S.   E.   502. 

29.  Commonwealth  v.  Wampler,   104  Va.   337,   51   S.   E.   737. 

30.  Nat.  Valley  Bank  v.  Hancock,  100  Va.  101,  40  S.  E.  611. 


§    52  JOINT    TORTFEASORS  59 

tract,  and  the  action  be  in  form  as  for  breach  of  contract,  as 
for  example  a  suit  to  recover  damages  for  a  breach  of  con- 
tract of  marriage,  or  against  a  carrier  for  failure  to  safely 
carry  a  passenger,  the  action  is  in  substance  purely  personal, 
and  dies  with  the  person,* and  is  not  subject  to  assignment.31 
Nor  will  the  result  be  different  simply  because  the  plaintiff  may 
have  sustained  special  damages  as  an  incident  of  a  personal 
injury,  as,  for  instance,  a  claim  for  medical  services,  as  incident 
to  an  action  to  recover  damages  for  a  personal  injury.32  Only 
those  causes  of  action  are  assignable  which  upon  death  would 
survive  to  the  personal  representative  of  the  party  sustaining 
the  damage,  and  only  those  actions  survive  which  consist  of 
injuries  to  property,  real  and  personal,  or  grow  out  of  breach 
of  contract.33 

§    52.    Joint  tortfeasors. 

It  has  already  been  pointed  out  that  in  case  of  joint  wrongs, 
the  plaintiff  may  at  his  election  sue  all,  or  any  one,  or  any  inter- 
mediate number,  but  in  order  to  sue  all  there  must  have  been 
a  joint  wrong.  In  respect  to  negligent  injuries,  there  is  great 
difference  of  opinion  as  to  what  constitutes  joint  liability,  and 
it  is  said  that  no  comprehensive  general  rule  can  be  formulated 
which  will  harmonize  all  the  authorities.34  It  has  been  held 
that  when  the  negligence  of  two  or  more  persons  produces  a 
single,  indivisible  injury,  they  are  joint  tortfeasors,  although  such 
persons  act  independently  of  one  another ;  and  further  that  where 
the  negligence  of  two  or  more  persons  concurs  in  producing 
a  single,  indivisible  injury,  then  such  persons  are  jointly  and 
severally  liable,  although  there  was  no  common  duty,  common 
design,  or  concert  of  action.35  But  with  respect  to  nuisances, 

31.  Birmingham  r.  C.  &  O.  R.  Co.,  98  Va.  548,  37  S.  E.  17;  Grubb 
v.  Suit,  32  Gratt.  203. 

32.  Birmingham  v.  C.  &  O.  R.  Co.,  supra. 

33.  Graves'  Notes  on  PI.  16,  17,  and  cases  cited;   N.  &  W.  R.  Co. 
v.   Read,   87   Va.   185,   12   S.   E.   395. 

34.  Cooley  on  Torts    (Students'   Ed.),  §  37. 

35.  Walton  v.   Miller,   109  Va.   210,   63   S.    E.   458.     As   to  joint  lia- 
bility of  carriers   of  goods  whose   negligent  acts   are   not   simultane- 
ous, but   successive,  see   Norfolk  W.   R.   Co.  v.  Crull,  112  Va.  — ,   70 
S.  E.   521. 


60  PARTIES   TO   ACTIONS  §    JZ 

"where  different  proprietors  on  a  stream,  each  acting  independ- 
ently and  for  his  own  purposes,  conduct  filth  or  refuse  into  the 
stream  from  their  respective  estates  they  are  held  not  to  be  jointly 
liable."36  Whether  a  master  and  servant  can  be  jointly  sued  for  a 
negligent  injury  inflicted  by  the  servant,  when  the  liability  of  the 
master  is  by  relation  only,  has  been  seriously  questioned,  and 
the  weight  of  authority  seems  to  be  in  favor  of  the  joint  lia- 
bility,37 though  it  is  stated  in  26  Cyc.  1545,  that,  as  a  general 
rule,  there  is  no  joint  liability  when  the  master  is  liable  solely 
on  the  doctrine  of  respondeat  superior.  Certainly,  on  principle, 
the  statement  in  Cyc.  would  seem  to  be  the  right  doctrine,  and  the 
reasons  assigned  for  the  joint  liability  are  not  at  all  convincing.38 
In  Virginia  the  joint  liability  has  been  upheld  though  the  subject 
was  not  discussed.39  If  the  plaintiff  elects  to  sue  only  one 
of  the  joint  tortfeasors,  and  there  is  judgment  against  the  plain- 
tiff, this  is  no  bar  to  an  action  against  the  others  where  the 
defence  was  personal  to  that  defendant,  but  if  the  defence  was 
equally  applicable  to  all  the  joint  tortfeasors,  as,  for  instance, 
contributory  negligence  of  the  plaintiff,  it  would  seem  that  a 
judgment  in  favor  of  one  joint  tortfeasor  would  be  a  bar  to 
an  action  against  another,40  but  this  question  has  been  left 
open  in  Virginia.41  If,  however,  the  plaintiff  elects  to  sue  all 
in  a  single  action,  and  all  are  found  guilty,  the  verdict  must  be 
joint  against  all,  and  the  assessment  of  damages  must  be  the  same 
as  to  all  of  the  defendants.  The  jury  have  no  power  to  appor- 
tion the  damages  among  them.42  In  a  joint  action  of  tort 
against  master  and  servant,  after  a  verdict  against  the  master 
and  in  favor  of  the  servant  has  been  set  aside,  although  the 

36.  Cooley    on    Torts    (Students'    Ed.),    §    38;    Pulaski    Coal    Co.    v. 
Gibboney,  110  Va.  444,  66  S.   E.   73. 

37.  Cooley  on  Torts   (Students'   Ed.),  §  39,  and  cases   cited;    Huff- 
cut  on   Agency,   §   214  and   cases   cited. 

38.  Schumpert  v.   So.    Ry.   Co.,   65   S.   C.   332,   43   S.    E.   813,   95   Am. 
St.   Rep.   802. 

39.  Singer  Mfg.  Co.  v.   Bryant,  105  Va.  403,  54  S.  E.  320;   Ivanhoe 
Furnace  Corp.  v.  Crowder,  110  Va.  387,  66  S.  E.  63. 

40.  23   Cyc.   1213. 

41.  Staunton  Tel.  Co.  v.   Buchanan,  108  Va.   810,  814,  62  S.   E.  928. 

42.  Cooley  on  Torts   (Students'   Ed.),  §  41;   Crawford  v.   Morris,   5 
Gratt.   90. 


§    53  ACTIONS    BY    AND    AGAINST    COURT    RECEIVERS  61 

evidence  disclosed  no  negligence  on  the  part  of  the  master,,  ex- 
cept that  imputed  on  account  of  the  negligence  of  the  servant, 
it  is  entirely  competent  for  the  plaintiff  to  dismiss  the  action 
as  to  the  servant  and  proceed  with  the  second  trial  against  the 
master  only,  as  he  might  in  the  first  instance  have  sued  either 
or  both  of  them.42a 

§   53.    Actions  by  and  against  court  receivers. 

In  the  absence  of  statute,  a  receiver  has  no  authority  except 
that  conferred  by  the  order  of  his  appointment.  He  is  a  mere 
arm  of  the  court,  and  has  no  right  to  institute  an  action  without 
authority  from  the  court  of  his  appointment.  For  reasons  of 
public  policy,  the  court  determines  for  itself  what  litigation  it 
will  engage  in,  and  does  not  trust  to  the  judgment  of  the  receiver 
as  to  the  conservation  or  preservation  of  the  assets  under 
its  control.  So,  likewise,  being  an  officer  of  the  court,  no 
one  has  a  right  to  sue  him  except  by  leave  of  the  court  of 
his  appointment,  and"  to  bring  such  suit  would  be  a  contempt 
of  the  appointing  court.  The  right  either  to  sue  or  be  sued 
must  appear  in  the  pleadings.  This  rule,  however,  with  refer- 
ence to  suits  against  receivers,  has  been  modified  by  statute  in 
Virginia,  and  also  by  Act  of  Congress.43  It  will  be  observed 

42a.   Ivanhoe   Furnace   Co.  v.   Crowder,   supra. 

43.  Section  3415a  of  the  Code  is  as  follows:  "Any  receiver  of  any 
corporation  appointed  by  the  courts  of  this  commonwealth  may  be 
sued  in  respect  of  any  act  or  transaction  of  his  in  carrying  on  the 
business  connected  with  such  corporation  without  the  previous 
leave  of  the  court  in  which  such  receiver  was  appointed:  provided, 
the  institution  or  pendency  of  such  suit  shall  not  interfere  with  or 
delay  a  decree  of  sale  for  foreclosure  of  any  mortgage  upon  the 
property  of  said  corporation,  and  said  claim  shall  not  be  a  lien  upon 
the  property  or  funds  under  control  of  the  court  until  filed  in  said 
court  under  the  second  section. 

"(2)  No  execution  shall  issue  upon  such  judgment,  but  upon  the 
filing  of  a  certified  copy  thereof  in  the  cause  in  which  the  receiver 
or  receivers  were  appbinted  the  court  shall  direct  the  payment  of 
such  judgment  in  the  same  manner  as  if  the  claims  upon  which  the 
judgment  is  based  had  been  proved  and  allowed  in  said  cause. 

"(3)  Process  or  notice  may  be  served  upon  such  receiver  or  re- 
ceivers or  their  agents  in  the  same  manner  as  is  provided  by  sec- 


62  PARTIES   TO   ACTIONS  §    53 

upon  reading  these  statutes,  which  are  quoted  in  the  margin, 
that  the  State  statute  applies  only  to  receivers  of  corporations, 
whereas  the  Federal  statute  applies  to  "every  receiver  or  manager 
of  any  property,  appointed  by  any  court  of  the  United  States." 
It  will  be  further  observed  that  the  basis  of  the  action  under 
either  statue  is  "any  act  or  transaction  of  his  in  carrying  on  the 
business."  Hence  the  act  does  not  apply  to  acts  or  omissions 
of  the  principal  before  the  appointment  of  the  receiver.  The 
receivership,  however,  is  an  entirety  and  it  has  been  held  that 
the  act  is  broad  enough  to  cover  an  action  against  a  receiver 
in  respect  to  an  act  or  transaction  of  his  predecessor  in  office. 
It  is  said  that  "actions  against  the  receiver  are  in  law  actions 
against  the  receivership  or  the  funds  in  the  hands  of  the  re- 
ceiver, and  his  contracts,  misfeasances,  negligence  and  liabilities 
are  official  and  not  personal,  and  judgment  against  him  as  re- 
ceiver are  payable  only  from  the  funds  in  his  hands."44 

While  there  has  been  some  difference  of  opinion  as  to  what 

tion  seven  of  chapter  three  hundred  and  ninety-six  of  acts  of  as- 
sembly eighteen  hundred  and  eighty-five  and  eighty-six  for  serv- 
ing process  or  notice  upon  a  trusteef  or  trustees  or  their  agents 
where  a  corporation  is  operated  by  a  trustee  or  trustees  or  their 
agents. 

"(4)  All  warrants  before  a  justice  of  the  peace  under  this  act  shall 
be  tried  only  after  ten  days'  notice. 

"(5)  All  suits  now  pending  before  any  court  in  this  common- 
wealth upon  petition  against  any  receiver  or  receivers  shall  upon 
the  motion  of  the  petitioner  be  removed  to  the  county  or  corpora- 
tion where  the  cause  of  action  arose,  the  issue  to  be  made  upon  the 
petition  and  answer,  or  the  petitioner  shall  be  allowed  if  he  so  elect 
to  dismiss  his  petition  and  institute  his  suit  or  action  as  is  herein 
provided  if  his  said  action  shall  not  have  been  barred  by  the  statute 
of  limitations  before  the  filing  of  said  petition." 

25  U.  S.  Stat.  436;  1  Sup.  Rev.  Stat.  U.  S.  614,  §  3,  provides  that: 
"Every  receiver  or  manager  of  any  property,  appointed  by  any 
court  of  the  United  States,  may  be  sued  in  respect  of  any  act  or  trans- 
action of  his  in  carrying  on  the  business  connected  with  such  property, 
without  the  previous  leave  of  the  court  in  which  such  receiver  or  man- 
ager was  appointed.  But  such  suit  shall  be  subject  to  the  general 
equity  jurisdiction  of  the  court  in  which  such  receiver  or  manager 
was  appointed,  so  far  as  the  same  shall  be  necessary  to  the  ends  of 
justice." 

44.  MacNulta  v.   Lochridge,   141  U.   S.   327. 


§'    54  PARTNERSHIP  63 

is  the  effect  of  the  judgment  against  the  receiver  when  ren- 
dered, it  would  seem  that  the  judgment  is  conclusive  as  to  the 
existence  and  amount  of  the  claim,  but  that  the  time  and  man- 
ner of  its  payment  is  subject  to  the  control  of  the  court  ap- 
pointing the  receiver.45 

Although  there  is  some  conflict  among  the  state  courts  on  the 
subject,  it  has  been  held  by  the  Supreme  Court  of  the  United 
States  that  a  receiver  is  an  officer  of  the  court  which  appoints 
him,  and,  in  the  absence  of  some  conveyance  or  statute  vesting 
the  property  of  the  debtor  in  him,  he  cannot  sue  in  the  courts 
of  a  foreign  jurisdiction  upon  the  order  of  the  court  appointing 
him,  to  recover  the  property  of  the  debtor.  His  right  to  sue 
will  not  be  recognized  by  comity;  and  if  he  has  no  right  to 
sue,  jurisdiction  cannot  be  acquired  by  authorizing  the  receiver 
to  sue  in  the  name  of  the  creditor,  if  it  appears  that  the  prop- 
erty or  its  proceeds  would  be  turned  over  to  the  receiver  to 
be  by  him  administered  under  the  order  of  the  court  appoint- 
ing him.46  The  proper  method  of  procedure  in  such  case  is  to 
have  an  ancillary  receiver  appointed  in  the  state  in  which  the 
action  is  to  be  brought  and  let  the  action  be  brought  by  him. 

§   54.    Partnership. 

In  partnership  matters,  the  partners,  in  the  absence  of  statute, 
must  sue  and  be  sued  in  the  partnership  name,  giving  the 
Christian  and  surnames  of  the  individual  partners  composing 
the  firm,  for  example,  John  Smith,  Henry  Jones  and  William 
Brown,  partners,  doing  business  under  the  style  and  firm  of 
Smith  &  Company.  If  the  firm  has  been  dissolved,  the  same 
form  should  be  adopted,  except  that  they  would  be  described  as 
late  partners,  doing  business,  etc.  Dormant  and  special  partners 
need  not  be  joined  as  plaintiffs,  but  they  are  nevertheless  partners, 
and  may  be  joined.  In  other  words,  they  are  proper  parties, 
but  not  necessary  parties.47  It  is  not  necessary  to  join  them 

45.  Dillingham  v.  Hawk  (C.  C.  A.),  60  Fed.  494;  St.  Louis  R.  Co.  v. 
Holbrook  (C.  C.  A.),  73  Fed.  112;  Cf.  Tex.,  etc.,  R.  Co.  v.  Johnson, 
151  U.  S.  81;  contra,  Mo.  Pac.  R.  Co.  v.  Tex.  Pac.  R.  Co.,  41  Fed.  311. 

46.  Great  Western   Mining  Co.  v.  Harris,  198  U.  S.  561. 

47.  15   Encl.  PI.   &  Pr.  856,  and  cases  cited. 


64  PARTIES   TO   ACTIONS     '  §    54 

as  defendants  where  it  is  sought  only  to  subject  the  partnership 
assets  or  obtain  judgment  against  the  active  partners,  but  if 
any  judgment  is  sought  against  them  personally,  they  must  be 
made  parties  and  served  with  process.  This  is  specially  pro- 
vided for  by  statute  in  Virginia  so  far  as  affects  special  part- 
ners.48 If  one  member  of  the  firm  dies  after  a  cause  of  action 
has  arisen,  but  before  the  action  is  brought,  the  right  of  action 
generally  survives  for  and  against  the  survivors,  and  so  on  until 
the  last  survivor,  and,  in  the  event  of  his  death,  to  his  personal 
representative.  The  form  of  the  writ  and  declaration  where  one 
partner  has  died,  would  be  as  follows :  John  Smith  and  Henry 
Jones,  survivors  of  themselves,  and  William  Brown,  late  part- 
ners, doing  business  under  the  style  and  firm  of  Smith  &  Com- 
pany. If  there  has  been  any  change  in  the  firm  after  a  right 
of  action  has  accrued,  either  by  the  retiring  of  a  partner,  or 
the  addition  of  a  new  partner,  the  action  should  be  brought  in 
the  name  of  the  firm  as  it  existed  at  the  time  the  right  of  action 
accrued.  When  a  partnership  has  no  right  to  sue  in  the  firm 
name,  the  objection  on  that  account  comes  too  late  after  judg- 
ment. The  judgment  is  believed  to  be  valid,  certainly  where 
there  has  been  appearance  to  the  merits.  In  no  event,  can  the 
judgment  be  collaterally  assailed.  If  the  defendants  are  sued  in 
the  firm  name  only,  it  is  doubtful  what  the  effect  would  be. 
If  there  was  appearance,  and  no  objection,  it  would  probably 
bind  the  firm  assets  as  between  the  plaintiff  and  the  defendants.49 
If  an  action  is  brought  by  a  firm  on  a  contract  made  with  it, 
but  the  plaintiff  omits  to  state  the  name  of  one  of  the  partners, 
the  objection  is  fatal.  If  the  omission  appears  on  the  face  of 
the  declaration,  advantage  may  be  taken  of  it  on  a  demurrer, 

48.  Section  2876  of  the  Code  is  as  follows:     "All  suits   respecting 
the    business    of    any    partnership    formed    or    renewed,    as    hereinbe- 
fore prescribed,  shall  be  prosecuted  by  and  against  the  general  part- 
ners only,  except  in  those  cases  wherein  it  is  provided  in  this  chap- 
ter  that   a    special   partner    shall    be    liable    as    a    general    partner,    in 
which    cases    all   partners    so    liable   may   join    or   be   joined    in    such 
suits.     A  special  partner  shall  also  be  liable  to  and  may  be  sued  by 
the  firm  for  debts   contracted  with   it,  in   the   same  manner  as   if  he 
were  not  a  partner." 

49.  15   Encl.  PI.  &  Pr.  956,  7,  and  cases  cited. 


§    55  EXECUTORS    AND    ADMINISTRATORS  65 

or  motion  in  arrest  of  judgment,  or  writ  of  error.  If  it  does 
not  so  appear,  it  can  be  taken  advantage  of  by  a  plea  in 
abatement,  or  a  non-suit  at  the  trial.  If  the  omission  is  the 
name  of  a  defendant  partner  on  a  contract  made  by  the  firm, 
and  it  is  not  apparent  on  the  face  of  the  declaration,  the  objec- 
tion can  be  taken  by  a  plea  in  abatement  only.50 

One  partner  cannot  sue  another,  or  others,  as  such,  at  law, 
but  will  be  compelled  to  go  into  equity.51 

One  partner  after  dissolution  cannot  employ  an  attorney  to 
represent  the  firm  and  thus  bind  the  absent  partners;  and  a 
judgment  rendered  upon  such  appearance  against  a  non-resident 
who  is  not  served  with  process  does  not  bind  him,  although  other 
members  of  the  firm  may  be  bound.52  By  statute  in  West  Vir- 
ginia, a  partnership  may  sue  in  the  firm  name  where  the  action 
is  before  a  justice  of  the  peace,  but  the  names  of  the  individuals 
composing  such  firm  shall  be  set  forth  in  the  summons.53 

§    55.    Executors  and  administrators. 

Executors  and  administrators  sue  and  are  sued  in  their  repre- 
sentative capacity,  on  contracts  made  with  or  by  the  decedent; 
and  on  contracts  with  an  executor  or  administrator  himself,  he 
may  sue  either  representatively  or  individually.  Co-executors 

50.  Graves'  Notes  on  PI.,  §  6;  Stephen  on  PI.,  §§  33,  35.     The  rea- 
son of  the  rule  is  that  each  partner  is  liable  for  the  whole  debt  and 
it  is  no  hardship  upon  him  to  make  him  pay  the  whole,  as  he  must 
have   credit    for    it  in    his    account    with   the  partnership,  and   if  he 
knows    that    another    is    bound    to  .share    this    liability    with    him    he 
should  make  known  this  fact  at  an  early  stage  of  the  pleadings   so 
that  the  plaintiff  may  amend  and  bring  him,  in,  and  if  he  fails  to  do 
so  he  will  be  deemed  to  have  waived  the  right.     "He  ought  not  to 
be  permitted  to  lie  by  and  put  the  plaintiff  to  the  delay  and  expense 
of  a  trial,  and  then  set  up  a  plea  not  founded  in  the  merits   of  the 
cause,  but  on  the  forms  of  the  proceeding."     Lord  Mansfield  in  Rice 
v.  Shute,  Burr.  2611,  1  Smith's  L.  Cases   (8th  ed.)   1405. 

51.  Aylett  v.  Walker,  92  Va.  540,  24  S.  E.  226;  Strother  v.  Strother, 
106  Va.  420,  56   S.   E.   170;   Summerson  v.   Donovan,   100  Va.   657,   66 
S.   E.  822. 

52.  Hall   v.    Lanning,    91    U.    S.    160;    Bowler   v.    Huston,' 30    Gratt. 
266. 

53.  Code,   W.    Va.    (1906),    §    1976. 

—5 


66  PARTIES  TO   ACTIONS  §§    56-58 

• 

or  administrators  must  all  join  or  be  joined  on  contracts  with 
the  decedent,  but  upon  the  death  of  one,  the  action  survives 
to  the  other  or  others.54  In  the  absence  of  statute,  foreign  ex- 
ecutors and  administrators  cannot,  as  a  rule,  sue  in  another 
jurisdiction,  and  this  is  true  even  in  the  federal  courts  having 
jurisdiction  over  two  states.  If  the  administration  is  granted 
in  one  state,  the  representative  cannot  sue  in  another  state  with- 
out taking  out  ancillary  letters.55  In  a  few  jurisdictions,  such 
suits  are  allowed  by  comity.  The  objection,  however,  is  not  to 
the  jurisdiction  of  the  court,  but  to  the  disability  of  the  plaintiff 
to  sue,  and  if  relied  upon,  must  be  taken  at  the  proper  time 
and  in  the  proper  manner,  otherwise  it  will, be  deemed  to  have 
been  waived;  and  it  has  been  held  that  it  comes  too  late  after 
a  plea  to  the  merits,  and,  of  course  after  verdict.  In  some 
jurisdictions,  the  action  will  be  upheld  if  ancillary  letters  are 
taken  out  pending  the  action,  in  others  not.56 

§   56.    Corporations. 

Corporations  sue  and  are  sued  in  their  corporate  names. 

§   57.    Infants. 

Infants  sue  by  next  friend.  They  are  sued  in  their  proper 
names,  but  a  guardian  ad  litem  is  appointed  to  defend  them. 
In  Virginia,  the  guardian  ad  litem  must,  as  a  rule,  be  an  attorney 
at  law.57  In  most  states,  the  statutes  require  process  to  be 
served  upon  the  infant  personally,  but  there  is  no  such  statute 
in  Virginia. 

§    58.    Insane  persons. 

Actions  by  an  insane  person  before  adjudication  should  be 
brought  in  his  name  suing  by  his  next  friend,  after  adjudication 
generally  by  his  committee.  Actions  against  an  insane  person 

54.  8  Encl.  PI.  &  Pr.  658;   Lawson  .v.  Lawson,   16  Gratt.   230. 

55.  Fugate  v.  Moore,  86  Va.  1045,  11  S.  E.  1063;  Johnson  v.  Pow- 
ers, 139  U.  S.  156;  8  Encl.  PI.  &  Pr.  700. 

56.  Lusk  v.   Kimball    (C.   C.   A.   4th  Cir.),  4  Va.   Law   Reg.   731,  91 
Fed.  845;  Dearborn  v.  Mathes,  128  Mass.  194;  13  Am.  &  Eng.  Encl. 
Law  (2nd  ed.)  948;  8  Encl.  PI.  &  Pr.  703. 

57.  Code,  §  3255;  10  Encl.  PI.  &  Pr.  600-2. 


§    59  MARRIED  WOMEN  67 

when  no  'committee  has  been  appointed  should  be  against  him 
personally,  and  will  be  defended  by  a  guardian  ad  lit  em  appointed 
for  that  purpose  by  the  court.58  Usually  after  the  appointment 
of  a  committee,  actions  affecting  the  estate  of  the  insane  person 
are  brought  by  or  against  the  committee.  In  a  suit  to  subject 
the  lands  of  an  insane  person  to  the  payment  of  his  debts,  he 
is  not  a  necessary  party  when  he  has  a  committee  clothed  with 
absolute  power  over  him  and  his  estate,  together  with  authority 
to  sue  and  be  sued  with  respect  to  such  estate.  In  a  proceeding 
affecting  the  property  rights  of  an  insane  person,  it  is  the 
duty  of  the  court,  if  he  have  no  committee,  to  appoint  a  guardian 
ad  litem  to  represent  and  protect  his  interests,  but  if  he  has 
a  committee,  the  appointment  of  a  guardian  ad  litem  is  wholly 
unnecessary,  except  where  there  is  -a  conflict  of  interest  between 
the  committee  and  the  insane  person.59  It  may  be  well  to  note 
in  this  connection  that  the  right  of  action  against  the  estate  of 
an  insane  person  for  past  expenses  incurred  in  supporting  him 
in  one  of  the  state  hospitals  exists  only  by  virtue  of  the  statute 
imposing  a  personal  liability  for  his  support.  At  common  law  no 
such  right  existed,  in  the  absence  of  express  contract.60  No  action 
lies  against  the  State,  or  against  one  of  the  State  hospitals  for 
the  insane,  for  an  injury  to  or  the  death  of  an  insane  inmate  oc- 
casioned by  the  negligence  or  misconduct  of  those  in  charge  of 
the  hospital,  or  their  agents  or  employees.60*1 

§  59.  Married  women. 

Married  women  sue  and  are  sued  in  Virginia  like  men.  If  a 
next  friend  is  added,  his  name  may  be  simply  stricken  out,  as  it  is 
her  suit.61  The  husband  is  not  responsible  for  any  contract,  lia- 
bility of  tort  of  his  wife,  whether  the  contract  or  liability  was  in- 
curred, or  the  tort  was  committed,  before  or  after  marriage.  A 
judgment  against  a  married  woman,  whether  in  tort  or  contract, 

58.  Code,  §  3255;   10  Encl.   PI.   &   Pr.   1225. 

59.  Howard  v.  Landsberg,  108  Va.  161,  60  S.  E.  769. 

60.  Brown  v.  Western  State  Hospital,  110  Va.  321,  66  S.   E.  48. 
60a.  Maia  v.  Eastern  State  Hospital,  97  Va.  507,  34  S.   E.  617. 

61.  Richmond  Ry.  Co.  v.  Bowles,  92  Va.  738,  24  S.  E.  388. 


68  PARTIES   TO  ACTIONS  §§    60-61 

binds  her  personally.62  It  has  been  said  that  a  marrkd  woman 
when  properly  sued  alone  defends  in  proper  person  and  not  b> 
attorney,63  but  this  can  hardly  be  true  under  the  very  comprehen- 
sive language  of  the  present  statute  in  Virginia.  There  is  no 
longer  any  reason  why  she  may  not  appear  by  attorney.  Notwith- 
standing the  very  comprehensive  provisions  of  the  present  mar- 
ried women's  law  in  Virginia,  the  husband  is  still  entitled  to  the 
services  of  his  wife  and  in  an  action  by  her  to  recover  damages 
for  injuries  inflicted  upon  her,  the  diminution  of  her  ability  to 
perform  her  ordinary  household  duties  is  a  damage  to  the  hus- 
band and  not  the  wife.  A  personal  injury  to  the  wife  may  give 
rise  to  two  causes  of  action ;  one  in  favor  of  the  husband  for  the 
loss  of  her  services  and  the  other  in  favor  of  the  wife  for  the 
personal  injury  and  suffering  occasioned  her.64 

§  60.  Unincorporated  associations. 

These  have  no  legal  entity  and  at  law  are  treated  in  the  nature 
of  partnerships,  and  all,  however  numerous,  must  sue  or  be 
sued.  There  can  be  no  action  against  the  association  as  such.65 
In  some  instances,  some  members  of  such  an  association  may  in 
equity  sue  on  behalf  of  themselves  and  others  constituting  the  as- 
sociation.66 

§  61.    Death  by  wrongful  act. 

Whether  a  non-resident  alien  is  entitled  to  the  benefit  of  a 
statute  giving  a  right  of  action  for  wrongful  death  is  a  ques- 
tion upon  which  courts  are  divided.  The  decided  weight  of  au- 
thority seems  to  allow  the  action,  but  it  has  been  denied  in  Penn- 
sylvania and  Wisconsin  and  probably  other  States.  It  is  allowed 
in  Virginia.67  Where  the  action  is  brought  in  the  State  in  which 

62.  Code,   §   2286a;   6  Va.    Law    Reg.   52,   485;    Young  v.    Hart,    101 
Va.   480,   44   S.    E.    703. 

63.  4  Min.  Inst.  764. 

64.  Richmond  Ry.   Co.  v.   Bowles,  supra;   Norfolk  Ry.   &  L.   Co.  v. 
Williar,   104  Va.   679,   52   S.   E.   380. 

65.  22  Encl.   PI.  &  Pr.  330. 

66.  Perkins  v.   Seigfried,  97  Va.  444,  34  S.   E.  64. 

67.  Low   Moor   Iron   Co.   v.   La   Bianca,   106  Va.   83,   55   S.    E.   532; 
Mulhall  v.   Fallen,   176  Mass.  266,  54  L.   R.   A.   934,  79  Am.   St.   309; 
Deni  v.  Penn.  R.  Co.,  181  Pa.  525,  59  Am.  St.  676;  McMillan  v.   Spi- 
der Lake  Co.,  115  Wis.  332,  60  L.  R.  A.  589,  95  Am.  St.  947. 


§    61  DEATH  BY  WRONGFUL  ACT  69 

the  injury  occurs,  it  is  generally  fairly  plain  who  should  be  the 
plaintiff,  but  sometimes  redress  is  sought  in  another  jurisdiction. 
The  first  question  then  presented  is,  whether  the  action  can  be 
maintained  in  the  foreign  jurisdiction,  although  the  defendant  re- 
sides there.  Upon  this  question  there  has  been  serious  conflict 
of  authority.  But  it  is  generally  held  that,  where  the  statutes 
of  the  two  States  are  substantially  similar,  the  action  may  be 
maintained  in  any  jurisdiction  where  service  can  be  had  on  the 
defendant.68  The  law  of  the  place  where  the  injury  is  inflicted 
should,  on  principle,  determine,  (1)  in  whose  name  the  action 
should  be  brought;  (2)  the  time  in  which  it  should  be 
brought;  (3)  who  are  the  beneficiaries;  (4)  the  measure  of  re- 
covery; (5)  the  distribution  of  the  damages;  and  (6)  questions 
touching  contributory  negligence,  fellow-servants  and  the  like, 
though  upon  many  of  these  questions  there  is  serious  conflict.69 
In  some  jurisdictions  it  is  said  that  where  the  personal  repre- 
sentative is  authorized  to  sue  only  for  the  benefit  of  the  widow, 
children,  or  next  of  kin,  the  existence  of  such  beneficiaries  must 
be  alleged.  The  Virginia  statute*  gives  the  action  for  the  benefit 
of  certain  near  relatives,  but  provides,  if  there  are  none,  that  the 
recovery  shall  be  for  the  benefit  of  the  estate  of  the  deceased.70 
Under  this  statute  it  has  been  held  that  the  names  of  the  bene- 
ficiaries need  not  be  stated,  because  the  defendant  has  no  interest 
in  the  manner  of  the  distribution  of  the  damages,  nor  is  it  under 
the  control  of  the  plaintiff.71  Neither  is  it  permissible  to  show  the 
number  and  condition  of  the  family  dependent  upon  the  deceased 
for  support,72  nor  the  value  of  decedent's  estate,  as  it  is  said  that 
such  evidence  is  calculated  to  excite  the  sympathy  of  the  jury.73 

68.  Nelson  v.  C.   &  O.   R.  Co.,  88  Va.  971,  14  S.   E.  838;  8  Am.   & 
Eng.    Encl.   Law  878,  and   cases   cited;   56   L.   R.   A.   193   and  note;   3 
Va.   Law   Reg.   607. 

69.  8  Am.  &  Eng.  Encl.  Law  (2nd  ed.)   882,  et  seq;   Boston  R.  Co. 
v.   McDuffey,   79   Fed.    Rep.   934;    Dennick  v.   Central    R.   Co.,    103   U. 
S.  11;  Nelson  v.  C.  &  O.  R.  Co.,  supra;  Dowell  v.  Cox,  108  Va.  460, 
62  S.  E.  272. 

70.  Code,  §  2904. 

71.  Matthews  v.  Warner,  29   Gratt.  572;   Baltimore   &  O.   R.  Co.  v. 
Wightman,    29    Gratt.    431. 

72.  Southern    Ry.   Co.   v.    Simmons,   105    Va.   651,   55    S.    E.   459. 

73.  Ches.   &  O.   R.   Co.  v.   Ghee,   110  Va.  527,  66   S.   E.   826. 


70  PARTIES   TO   ACTIONS  §    62 

Nor  is  it  permissible  to  show  in  mitigation  of  damages  that  the 
beneficiaries  have  received  life  or  accident  insurance  in  conse- 
quence of  the  death  of  the  deceased.74  Nor,  on  the  other  hand, 
it  is  permissible,  in  an  action  by  an  employee  against  the  master 
to  recover  for  negligent  injury,  for  the  plaintiff  to  show  the  fact 
that  the  master  is  insured  against  accidents  to  his  employees.  It 
is  said  that  such  evidence  is  irrelevant  to  the  issue.75 

Attention  is  called  in  this  connection  to  the  State  Employers' 
Liability  Law,76  which  is  applicable  only  to  employees  of  railroads 
and  not  to  street  railways,77  and  which  abolishes  the  doctrine  of 
assumption  of  risk  as  to  appliances,  etc.,  but  not  as  to  the  mas- 
ter's methods  of  doing  business,78  and  which  for  the  most  part 
also  abolishes  the  fellow-servant  doctrine.  Attention  is  also  called 
to  the  Federal  Employers'  Liability  Act,  approved  April  22,  1908, 
which  is  applicable  only  to  employees  of  railroad  companies  en- 
gaged in  interstate  commerce,  or  operating  in  certain  territory 
within  the  exclusive  jurisdiction  of  the  United  States.  The  act 
must  be  consulted  to  ascertain  its  provisions,  but  it  may  be  ob- 
served that  it  differs  from  the  Virginia  act  in  introducing  the  doc- 
trine of  comparative  negligence,  and  in  fixing  the  time  at  two 
years  instead  of  one,  within  which  the  action  must  be  brought, 
and  in  placing  no  limit  on  the  amount  of  recovery  in  case  of  the 
death  of  the  employee.  Does  this  Act  repeal  or  supersede  the 
State  Act  as  to  the  employees  affected  ?78a  It  probably  does. 

§   62.    Undisclosed  principal. 

An  undisclosed  principal  may  be  sued  in  his  own  name  on  an 
executory  contract  made  by  and  in  the»name  of  his  agent,  if  the 
contract  be  not  under  seal  (and  probably  if  it  be  not  negotiable) 
and  the  consideration  be  executed.  In  like  manner,  he  may,  as 
a  rule,  sue  in  his  own  name  on  a  similar  contract  made  in  the 
name  of  the  agent,  but  the  other  contracting  party  cannot  be 

74.  Cooley  on  Torts   (Students'   Ed.)   287. 

75.  Va.-Car.  Chem.  Co.  v.  Knight,  106  Va.  674,  56  S.  E.  725. 

76.  Const.    (1962),   §   162;   Code,   §   1294k;   8   Va.   Law   Reg.   245. 

77.  Norfolk,   etc.,   Co.  v.   Ellington,   108   Va.   245,   61   S.    E.   779. 

78.  Southern   R.  Co.  v.  Foster,  111  Va.  763,  69  S.   E.  972. 

78a.  Atlantic  &  Tel.  Co.  v.  Phila.,  190  U.  S.  162;  Fulgham  -v.  Mid- 
land Valley  R.  Co.  (C.  C.),  167  Fed.  660. 


§  63  CONVICTS  71 

compelled  to  accept  the  undisclosed  principal  if  the  performance 
of  the  contract  (being  still  executory)  is  dependent  upon  the 
solvency  or  skill  of  the  agent,  or  upon  some  special  confidence 
reposed  in  him.  If  a  third  party,  in  contracting  with  the  agent, 
did  not  know  of  the  agency,  and  the  circumstances  were  such  that 
he  ought  not  to  be  charged  with  knowledge  of  it,  he  is  entitled, 
when  sued  by  the  principal,  to  be  placed  in  the  same  position  as  if 
the  agent  had  been  the  real  party  in  interest,  and  hence  to  assert 
any  set-off  he  may  have  against  such  agent;  but  if  he  knew  that 
the  other  party  was  acting  as  agent,  though  the  name  of  the  prin- 
cipal was  not  disclosed,  no  right  to  set-off  claims  against  the  agent 
can  ordinarily  be  asserted  against  the  undisclosed  principal.  In 
order  to  be  entitled  to  set-off  claims  against  the  agent,  the  other 
contracting  party  must  have  dealt  with  him  and  believed  him  to  be 
the  principal  in  the  transaction  up  to  the  time  the  right  of  set-off 
accrued.79  It  has  been  held  in  Virginia  that  "When  a  nonnego- 
tiable  simple  contract  is  entered  into  between  an  agent  of  an  un- 
disclosed principal  and  a  third  person,  the  latter  may,  as  a  gen- 
eral rule,  hold  either  the  agent,  or  his  principal  when  discovered, 
personally  liable  on  the  contract,  but  he  cannot  hold  both.  So, 
likewise,  either  the  agent  or  his  principal  may  sue  upon  such  a 
contract;  the  defendant,  when  the  principal  sues  upon  it,  being 
entitled  to  be  placed  in  the  same  situation  at  the  time  of  the  dis- 
closure of  the  real  principal  as  if  the  agent  had  been  the  contract- 
ing party.  If  the  agent  is  sued,  the  plaintiff  recovers  such  dam- 
ages as  have  resulted  from  the  breach  of  the  contract  by  him.  If 
the  agent  sues  he  is  entitled  to  recover  (unless  his  principal  in- 
terferes in  the  suit)  the  full  measure  of  damages  in  the  same  man- 
ner as  though  the  action  had  been  brought  by  the  principal."80 

§   63.    Convicts. 

At  common  law  a  convict  was  disabled  from  suing,  but  not 
from  being  sued.  Confinement  in  the  penitentiary  did  not 
change  his  place  of  residence,  and  does  not  now,  and  process 
could  be  served  on  him,  it  seems,  in  the  penitentiary,  and  the  case 

79.  Meachem   on   Agency,    §    773;    55   Am.    St.    Rep.   916,   923. 

80.  Leterman  v.   Charlottesvilte   L.   Co.,   110   Va.   769,   67   S.    E.   281. 


72  PARTIES   TO   ACTIONS  §    64 

proceed  to  judgment.81  Now  in  Virginia,  if  a  person  be  sen- 
tenced to  the  penitentiary  for  a  term  longer  than  one  year  (no 
provision  is  made  if  he  is  sentenced  for  a  year,  or  to  be  executed), 
a  committee  may  be  appointed  for  his  estate,  and  such  committee 
may  sue  and  be  sued  in  respect  to  debts  due  to  or  by  such  con- 
vict, and  any  other  of  the  convict's  estate,  and  where  the  action  is 
against  the  committee  judgment  may  be  entered  to  be  paid  out  of 
the  personal  estate  of  the  convict  in  the  hands  of  his  committee.82 
Service  upon  the  prisoner  in  person  would  seem  to  be  the  proper 
mode,  but  it  is  said  that  the  more  usual  mode  is  by  leaving  a 
copy  at  his  last  and  usual  place  of  abode.83 

§   64.    Official  and  statutory  bonds. 

Bonds  of  this  class  are  generally  payable  to  the  State  or  to 
some  officer  designated  by  statute.  Statutes  generally  permit  ac- 
tions on  such  bonds  at  the  relation  of  the  person  injured,  but  in 
the  absence  of  statute,  no  such  action  can  be  maintained.84  Usually 
such  actions  are  brought  in  the  name  of  the  payee  of  the  bond, 
suing  at  the  relation  and  for  the  benefit  of  the  party  injured,  but 
the  statutes  giving  the  right  of  action  on  such  bonds  generally 
prescribe  how  the  action  shall  be  brought.  In  Virginia,  an  action 
against  a  sheriff  on  his  official  bond  should  be  brought  in  the 
name  of  the  Commonwealth  of  Virginia,  suing  at  the  relation  and 
for  the  benefit  of  -  -  (the  party  injured).  The  bene- 

81.  Note,   76  Am.   St.   540,   541,   and   cases   cited;    Guarantee   Co.   v. 
Bank,  95  Va.  480,  28  S.  E.  909. 

82.  Code,   §§  4115,  4116,  2677. 

83.  19   Encl.  PI.  &  Pr.  642.     In  Neale  v.  Utz,  75  Va.  480,  the  writ 
in  the  action  at  law  was  served  on  the  defendant  while  being  tried 
for  felony  and  on  the  day  of  his  conviction.     There  was  judgment 
by   default,  while   the   defendant   was    serving  his   term   in    the   peni- 
tentiary.    In  the   chancery  suit  to  subject  his  lands  to  the  payment 
of   the    lien    of   the   judgment,    the   writ   was    served    on    the    defend- 
ant in   the   penitentiary.     It   was   held   that   the   judgment  was   valid 
until   reversed   in   a   proper  proceeding  for   that  purpose   and   that   it 
could   not   be    collaterally   assailed. 

84.  Penn.   Iron   Co.   v.   Trigg  Co.,   106   Va.   557,   56   S.    E.   329      The 
principle    of   this    case    is    admitted,    but    a    different    conclusion    was 
reached  on  the  merits  by  the  U.  S.  Supreme  Court  in  Title  Guaranty 
&  Trust  Co.  v.  Crane  Co.,  219  U.  S.  24,  31  Sup.  Ct.  140. 


§    65  CHANGE   OF    PARTIES  73 

ficiary  is  generally  called  the  relator,  and  is  responsible  for  the 
cost. 

§   65.   Change  of  parties. 

Although  an  action  may  be  rightly  brought,  a  change  may  take 
place  pending  the  action.  Formerly,  the  most  frequent  cause  of 
these  changes  were  death,  marriage,  insanity,  and  conviction  of 
felony.  Since  the  emancipation  of  married  women  in  Virginia, 
marriage  no  longer  works  a  change,  except  that  upon  a  mere  ver- 
bal suggestion  of  the  marriage  of  a  feme  sole,  supported  by  evi- 
dence of  the  fact,  the  action  should  be  directed  to  proceed  in  the 
new  name,  but  such  suggestion  is  not  believed  to  be  necessary.  If 
a  change  occurs  for  any  of  the  above  reasons  between  verdict  and 
judgment,  judgment  may,  nevertheless,  be  entered  as  though  it 
had  not  occurred.85 

If  there  be  several  parties,  plaintiffs  or  defendants,  and  the 
action  be  one  which  survives,  upon  the  death  or  other  incapacity 
of  one,  the  cause  of  action  survives  to  or  against  the  survivor  or 
survivors. 

If  there  be  a  sole  plaintiff  or  defendant,  and  he  dies,  becomes  in- 
sane, or  is  convicted  of  felony,  or  if  there  be  more  than  one  plain- 
tiff or  defendant,  and  one  or  more  dies,  becomes  insane,  or  con- 
vict, and  it  is  desired  to  proceed  for  or  against  the  estate  of  such 
decedent,  insane  person,  or  convict,  in  either  case  the  action  must 
be  revived.  The  action,  if  revivable,  may,  in  all  cases  be  revived 
by  scire  facias.  If  the  change  is  on  the  side  of  the  defendant,  the 
action  cannot  be  revived  in  any  other  way,  except  by  consent.  If, 
however,  the  change  is  on  the  side  of  the  plaintiff,  the  action  may 
be  revived  by  simple  motion,  zuithout  notice,  or  by  scire  facias. 
If  the  proceeding  is  by  motion,  such  motion  can  only  be  made  in 
term,  and  the  defendant  is  entitled  to  a  continuance  as  a  matter 
of  course,  without  showing  cause,  at  that  term  of  the  court.  If, 
however,  the  revival  is  by  scire  facias  it  may  be  matured  during 
vacation,  at  Rules,  and,  in  that  event,  the  opposing  party  is  not 
entitled  to  a  continuance  at  the  next  succeeding  term.86  Where 

85.  Code,    §   3305. 

86.  Code,    §§   3308,    3309;    Stearns   v.    Richmond    Paper   Co.,    86    Va. 
1034,    11    S.    E.    1057. 


74  PARTIES   TO   ACTIONS  §    66 

a  party  whose  powers  cease  is  a  defendant,  the  plaintiff  may  con- 
tinue his  action  against  him  to  final  judgment 

If  the  change  is  on  the  side  of  the  plaintiff,  the  defendant  may 
have  it  suggested  on  the  record,  and  unless  the  representative  of 
the  plaintiff  at  or  before  the  second  term  of  the  court  after  that 
at  which  the  suggestion  is  made  causes  the  action  to  be  revived, 
the  action  will  be  discontinued,  unless  good  cause  be  shown  to 
the  contrary.  This  suggestion  should  always  be  supported  by 
affidavit,  or  other  proper  evidence  of  the  fact  suggested.  Sup- 
pose, for  example,  the  plaintiff  dies.  The  defendant,  by  counsel, 
says  to  the  court,  "I  desire  to  have  the  death  of  the  plaintiff  sug- 
gested on  the  record."  Before  the  court  permits  the  suggestion 
to  be  entered  of  record  it  should  have  some  proper  evidence  of  the 
plaintiff's  death.87 

When  once  the  order  of  discontinuance  is  entered  for  failure 
to  revive,  it  can  never  be  set  aside  after  the  adjournment  of  that 
term  of  the  court.88 

§   66.    Mis  joinder  and  non- joinder  of  parties. 

If  a  person  is  improperly  made  a  party  plaintiff  or  defendant, 
then  there  are  "too  many"  parties  and  this  is  called  a  misjoinder. 
If  a  necessary  party  is  omitted  then  there  are  "too  few"  parties, 
and  this  is  called  non-joinder.  The  mode  of  taking  objection  at 
common  law  and  the  present  state  of  the  law  in  Virginia  is  thus 
stated  by  Professor  Graves  in  §  6  of  his  Notes  on  Pleading,  and 
the  note  thereto. 

"SECTION  6.  Too  MANY  OR  Too  FEW  PLAINTIFFS  OR  DEFEND- 
ANTS.   MODE  OF  TAKING  THE  OBJECTION  AT  COMMON  LAW. 

I.    ACTIONS  EX  CONTRACTU. 
1 .  Parties  Plaintiff. 
(a)  Too  many. 

( 1 )  When  apparent  on  the  record.     Demurrer ;  arrest 
of  judgment;  writ  of  error. 

(2)  When  not  apparent  on  the  record.    Non-suit  at  the 
trial. 

87.  Code,  §  3311. 

88.  For  a  general  discussion  of  this  subject,  see  Gainer  v.  Gainer, 
30    W.    Va.    390,    4   S.    E.   424. 


66  MISJOINDER    AND    NON-JOINDER    OF    PARTIES  75 

(b)  Too  few. 

( 1 )  When  apparent  on  the  record.    Demurrer ;  arrest  of 
judgment;  writ  of  error. 

(2)  When  not  apparent  on  the  record.    Plea  in  abate- 
ment, or  non-suit. 

2.  Parties  Defendant. 

(a)  Too  many. 

( 1 )  When  apparent  on  the  record.    Demurrer ;  arrest  of 
judgment;  writ  of  error. 

(2)  When   not   apparent   on  the    record.      Non-suit  at 
common  law.     But  see  now  Code  Va.,  sec.  3395,  al- 
lowing judgment  for  one  defendant,  and  against  an- 
other.   And  see  Bush  v.  Campbell,  26  Gratt.  403. 

(b)  Too  few. 

(1)  When  apparent  on  the  record,  and  it  is  also  ap- 
parent that  the  party  omitted  is  still  living. 

Demurrer;  arrest  of  judgment;  writ  of  error. 

(2)  When  not  apparent  on  the  record. 

Plea  in  abatement  only.  No  ground  for  non-suit  at 
trial.  Prunty  v.  Mitchell,  76  Va.  169;  Wilson 
v.  McCormick,  86  Va.  995  [11  S.  E.  976].  For 
amendment  of  declaration,  see  Va.  Code,  sec- 
tion 3263. 

II.   ACTIONS  EX  DELICTO. 

1.  Parties  Plaintiff. 

(a)  Too  many. 

(1)  When  apparent  on  the  record.     Demurrer;  arrest 
of  judgment ;  writ  of  error. 

(2)  When  not  apparent  on  the  record.    Non-suit. 

(b)  Too  few. 

(1)  When  apparent  on  the  record.     Abatement  or  ap- 
portionment. 

(2)  When  not  apparent  on  the  record.     Abatement  or 
apportionment. 

See  63  Am.  Dec.  369;  67  Am.  Dec.  256. 

2.  Parties  Defendant. 
(a)  Too  many. 

( 1 )  When  apparent  on  the  record.    Judgment  against  as 
many  as  are  liable ;  others  discharged. 


76  PARTIES   TO   ACTIONS  §    66 

(2)  When  not  apparent  on  the  record.  Judgment  against 

as  many  as  are  liable ;  others  discharged, 
(b)  Too  few. 

(1)  When  apparent  on  the  record.     No  ground  of  ob- 
jection. 

(2)  When  not  apparent  on  record.     No  ground  of  ob- 
jection. 

But  while  too  few  defendants  in  an  action  ex  delicto  is,  in  gen- 
eral, no  ground  of  objection,  it  seems  that  when  detinue  is 
brought  for  property  jointly  detained  by  several  all  should  be 
made  parties  defendant;  and  if  one  is  sued  alone,  he  may  plead 
the  non-joinder  in  abatement.  14  Cyc.  265;  National  Fire  Ins. 
Co.  v.  Catlin,  8  Va.  Law  Reg.  127,  130.89 

89.  Too  many  plaintiffs  or  defendants — Virginia  statute  as  to  mis- 
joinder. — The  above  summary  is  still  law  in  Virginia  when  there 
are  too  few  plaintiffs  or  defendants,  i.  e.,  when  there  is  nonjoinder. 
But  when  there  are  too  many  parties  (misjoinder)  it  is  now  pro- 
vided by  Acts  Va.,  1893-4,  p.  489,  amended  by  Acts  1895-6,  p.  453 
(Code  1904,  §  3258a) :  "Whenever  it  shall  appear  in  any  action  at 
law  or  suit  in  equity,  heretofore  or  hereafter  instituted,  by  the 
pleadings  or  otherwise,  that  there  has  been  a  misjoinder  of  parties, 
plaintiff  or  defendant,  the  court  may  order  the  action  or  suit  to 
abate  as  to  any  party  improperly  joined,  and  to  proceed  by  or 
against  the  others,  as  if  such  misjoinder  had  not  been  made;  and  the 
court  may  make  such  provision  as  to  costs  and  continuances  as  may 
be  just."  See  Lee  v.  Mutual,  etc.,  Life  Ass'n,  97  Va.  160,  33  S.  E. 
556,  where  it  is  said:  "The  word  'may'  in  a  statute  of  this  kind, 
which  is  in  furtherance  of  justice,  means  the  same  as  shall."  So, 
now  in  Virginia,  misjoinder  of  parties  is  not  good  ground  for  either 
demurrer  or  non-suit.  The  remedy  by  statute  is  to  move  the  court 
to  abate  the  suit  or  action  as  to  the  party  or  parties  improperly 
joined,  and  to  proceed  against  the  other  or  others  as  if  such  mis- 
joinder  had  not  been  made.  Riverside  Cotton  Mills  v.  Lanier,  102 
Va.  148,  159,  45  S.  E.  875. 

In  Norfolk,  etc.,  R.  Co.  v.  Dougherty,  92  Va.  372,  375,  23  S.  E. 
777,  it  was  held  that  under  the  original  Act  of  February  27,  1894, 
"this  desirable  addition  to  our  statute  law"  was  not  retrospective; 
and  this  led  to  the  addition  of  the  words  "heretofore  or  hereafter 
instituted"  in  the  amended  act  of  Feb.  26,  1896,  as  set  out  above." 


CHAPTER  VII. 
ORDINARY  ACTIONS  AT  LAW. 

§  67.  Classification  of  actions. 
Real  actions. 
Mixed    actions. 
Personal   actions. 
Local  and  transitory  actions. 
Actions  ex  contractu  and  ex  dclicto. 

§67.  Classification  of  actions. 

Ordinary  actions  at  law  are  variously  classified  by  different  au- 
thors. The  most  common  classifications  are:  (1)  Real,  personal 
and  mixed;  (2)  local  and  transitory;  and  (3)  ex  contractu  and 
ex  delicto.  Each  class  is  complete  in  itself,  and  embraces  all  or- 
dinary actions. 

Real  actions  are  for  the  recovery  of  land  only.  At  common  law 
a  freehold  estate  only,  but  by  statutes  generally  a  less  estate  than 
freehold  may  also  be  recovered.  In  Virginia  the  only  real  action 
is  Unlawful  Entry  or  Detainer,  or  Forcible  Entry.  This  is  purely 
statutory. 

Mixed  actions  are  for  the  recovery  of  land  and  damages,  or 
land  and  rents  and  profits  or  both.  Ejectment  in  Virginia  is  a 
mixed  action. 

Personal  actions  are  for  the  recovery  of  money  (whether  debt, 
or  damages),  or  other  personal  property. 

The  distinction  between  local  and  transitory  actions  is  pointed 
out  by  Professor  Graves  as  follows  r1  "At  common  law  all  ac- 
tions are  transitory  except  real  and  mixed  actions  for  recovery  of 
land,  and  the  personal  actions  for  injury  to  land,  such  as  tres- 
pass (q.  c.  f.),  case  for  nuisance  and  waste,  or  for  wrongs  done 
to  ways,  watercourses,  and  rights  of  common.  To  these  must  be 
added  one  more  action,  which  was  considered  as  local,  viz.,  that 
for  rent  due  when  the  action  was  brought  against  the  assignee  of 
a  term,  and  was  founded  on  privity  of  estate,  and  not  on  privity 
of  contract. 

"In  Virginia  only  actions  for  the  recovery  of  land  are  local; 
all  personal  actions  are  considered  transitory.  A  local  action 

1.  Graves'   Notes  on   PI.  38. 


78 


ORDINARY  ACTIONS   AT   LAW 


§   67 


must  be  brought  where  the  land  lies ;  but  a  transitory  action  could 
be  brought  in  England,  no  matter  in  what  country  the  cause  of 
action  arose,  if  the  defendant  was  found  in  England,  and  there 
personally  served  with  process.2  And  it  might  be  brought  in  any 
English  county  at  the  plaintiff's  election,  subject,  however,  to  re- 
moval, on  defendant's  motion,  to  the  county  in  which  the  cause  of 
action  arose."3 

With  reference  to  the  third  classification,  it  is  said  that  all  or- 
dinary common-law  actions  are  either  founded  on  contract  as 
the  cause  of  action,  or  are  not  so  founded.  The  former  are  called 
actions  ex  contractu,  the  latter  ex  delicto.  They  may  be  classified 
as  follows: 


Debt 
Covenant 
Assumpsit 
Account 


E.v  Contractu 


,v  Delicto 


Motion  by  statute  - 


1.  On  bonds  taken  or 
given  by  officers. 
Code,  §  3210. 

2.  For  money  recov- 
erable by  action  on 
contract.       Code. 
8  3211. 


Unlawful  Entry  or  Detainer,  or  Forcible 

Entry. 
Ejectment 
Detinue 
Interpleader 
Replevin 
Trespass  vi  et  armis,  or  trespass,  as  it  is 

'  usually  called. 
Trespass  on  the  case 

1.  Generally 

2.  In  trover  and  conversion 

3.  In  slander 

4.  In  libel 


2.  Mostyn  v.   Fabrigas,  Cowper  116;    (2  Sm.   L.   C.  1024). 

3.  Stephens,  §  191,  pp.  379,  380. 


CHAPTER  VIII. 
ACTION  OF  DEBT. 

§  68.  Nature   of  action. 

§  69.  What  is  a  sum  certain. 

§  70.  Debt   to   recover   statutory  penalties. 

§  71.  Debt  on  judgments  and  decrees. 

§  72.  The    declaration    in    debt. 

§  73.  The   general   issues   in   debt. 

1.  Nil    debet. 

2.  Non   est  factum. 

3.  Nul  tiel  record. 

§   68.    Nature  of  action. 

"The  action  of  debt  is  designed  to  recover  a  specific  sum  of 
money  due  by  contract,  verbal  or  written,  express  or  implied, 
where  the  amount  is  either  ascertained,  or  from  the  nature 
of  the  demand  is  capable  of  being  ascertained,  whether  due 
on  legal  liabilities  (as  penalties  denounced  by  statute),  on  simple 
contracts,  on  specialties  (or  obligations  under  seal),  on  records 
(as  recognizances,  judgments,  etc.),  or  otherwise."1  "Its  dis- 
tinguishing and  fundamental  feature  consists  in  the  fact  that 
it  lies  for  the  recovery  of  money,  or  its  equivalent,  in  sums 
certain,  or  that  can  readily  be  rendered  certain  by  actual  com- 
putation,"2 while  all  other  actions  are  for  recovery  of  damages, 
or  property,  or  both.  It  is  the  only  action  for  the  recovery 
of  money,  as  such,  eo  nomine  et  in  numero.  Anciently  the  ac- 
tion was  largely  assimilated  with  detinue  (which  lies  for  the 
recovery  of  specific  chattels  together  with  damages  for  their 
detention),  and  was  freely  brought  to  recover  chattels.3  In 
modern  times  this  usage  has  become  obsolete,  and  now  debt 

1.  4    Min.    Inst.    549,    550;    Nottingham    v.    Ackiss,    110    Va.    810,    67 
S.  E.  351;  Russell  v.  Louisville  &  N.  R.  Co.,  93  Va.  322,  25  S.  E.  99. 

2.  5    Encl.   PI.   &   Pr.   896. 

3.  2  Tucker's  Commentaries,  100;   Stephen's   Pleading,   124,  note  2. 
So,  in   Gibbons  v.  Jamesons'   Exrs.,   5   Call.  294,   it  was  argued  that 
debt  lay  to  recover  a   horse,   thus   showing  that   the   distinction   be- 
tween debt  and  detinue  had  not  been  entirely  settled  even  then. 


80  ACTION   OF   DEBT  §    68 

only  lies  to  recover  a  specific  sum  of  money.  A  trace  of  the 
old  practice  still  survives,  however,  in  the  rule  allowing  the 
joinder  in  one  declaration  of  a  count  in  debt  with  one  in  detinue.4 
Although  debt  is  a  common-law  action,  few  precedents  thereof 
can  be  found  in  the  early  reports.  The  reason  for  this  lies  in 
the  application  to  debt  of  the  quaint  common-law  trial  by  wager 
of  law.  In  every  action  of  debt  on  simple  contract  the  defend- 
ant had  the  power  simply  to  present  himself  in  court,  attended 
by  eleven  of  his  neighbors,  and  he  having  in  open  court  taken 
an  oath  that  he  did  not  owe  the  debt,  his  eleven  compurgators 
swore  that  they  believed  him,  which,  as  being  the  verdict  of 
the  twelve  men,  was  considered  sufficient  to  discharge  the  defend- 
ant from  the  action.  The  defendant  was  said  to  wage  his  law, 
and  the  procedure  was  called  wager  of  law.  This  liability 
to  wager  of  laiv  led  to  the  general  disuse  of  the  action  of  debt 
on  simple  contract,  and  the  substitution  therefor  of  the  action 
of  assumpsit.5  So  also  it  was  anciently  held  that  the  plaintiff 
had  to  recover  the  exact  sum  sued  for  or  nothing.  He  could 
recover  neither  more  nor  less.6  This  is  no  longer  the  rule, 
but,  according  to  the  modern  practice,  the  judgment  need  not 
correspond  exactly  with  the  claim.  It  may  be  for  less  than 
is  demanded  in  the  declaration,  but  not  for  more.7  More- 
over, ^vager  of  law  has  long  since  been  abolished  in  England, 
and  was  never  in  use  in  this  State,8  and  these  common-law 
impediments  which  rendered  the  action  unpopular  no  longer  ex- 
ist. But  debt  on  simple  contracts,  except  on  promissory  notes, 
is  rarely  brought  even  now  on  account  of  the  greater  flexibility 
of  the  action  of  assumpsit.9  Next  to  assumpsit,  debt  is  the 
most  usual  form  of  action  ex  contractu,  and,  among  many 
other  instances,  it  has  been  held  to  be  the  proper  action  in 
the  following  cases :  To  recover  a  sum  certain,  or  for  a  money 
demand  which  can  readily  be  reduced  to  a  certainty ;  to  recover 
money  due  on  legal  liabilities  ;  upon  simple  contracts  express  or  im- 

4.  4  Min.   Inst.   447,  448. 

5.  4  Min.  Inst.  449,  and  815,  816. 

6.  2  Tucker's   Commentaries,   97;    Stephen's    Pleading,   123. 

7.  5  Encl.   PI.   &  Pr.,  933;   Stephen's   Pleading,   123. 

8.  4  Min.    Inst.,   449,   and   815-816. 

9.  2  Tuckers'    Commentaries,    117,   note. 


§    68  NATURE  OF  ACTION  81 

plied,  whether  verbal  or  written,  and  upon  contracts  under  seal, 
or  of  record ;  upon  statutes  by  a  party  aggrieved,  or  by  a 
common  informer,  whenever  the  demand,  as  stated  above,  is  for  a 
sum  certain,  or  capable  of  being  reduced  to  a  certainty ;  upon 
a  replevin  bond  given  by  a  testator ;  by  a  sheriff  on  a  forth- 
coming bond  payable  to  himself ;  on  any  writing  acknowledging 
a  debt  in  a  certain  sum ;  on  an  acknowledgment  of  indebted- 
ness in  a  deed ;  on  an  instrument  sealed  as  to  some  and  not 
sealed  as  to  others ;  on  a  sheriff's  bond  for  his  failure  to  pay 
over  money  collected  by  him  and  which  he  should  have  paid 
but  did  not ;  upon  all  conclusive  records ;  by  a  landlord  for 
rent;  on  simple  contracts  and  legal  liabilities,  for  money  lent, 
paid,  had  and  received ;  for  fees ;  for  goods  sold  and  delivered. 
It  lies  against  an  executor  to  recover  a  legacy ;  when  an  un- 
liquidated demand,  which  can  readily  be  reduced  to  a  certainty, 
is  sought  to  be  recovered ;  on  a  recognizance  to  the  State  in 
criminal  proceedings ;  on  a  promissory  note ;  on  a  bill  of  ex- 
change ;  for  any  debt  or  duty  created  by  common  law  or  cus- 
tom; upon  an  award  to  pay  money;  to  recover  money  decreed 
to  be  paid  as  alimony;  to  recover  the  purchase  price  of  land 
sold  under  articles  of  agreement ;  to  recover  of  a  turnpike  com- 
pany damages  assessed  for  land  taken ;  on  policies  of  insurance 
under  seal,  on  annuities  and  on  mortgage  deeds ;  upon  an  in- 
junction bond;  and  upon  the  judgment  of  a  superior  or  an 
inferior  court  of  record.10  In  brief,  upon  any  contract,  sealed 
or  unsealed,  for  the  payment  of  a  sum  certain  of  money,  or  a 
sum  readily  rendered  certain. 

But  it  has  been  held  that  debt  cannot  be  maintained  for  the 
recovery  of  an  entire  sum  of  money,  payable  by  installments, 
until  all  the  installments  have  fallen  due.11 

In  early  days  the  courts  of  England  looked  with  great  dis- 
favor upon  bills  and  notes,  considering  them  in  the  light  of 
innovations  upon  common-law  principles,  and  consequently  held 

10.  Hoggs'    Pleading    &    Forms,   41,    et   seq.,   and    authorities    cited. 
See,  also,  5  Encl.  PI.  &  Pr.  896,  et  seq.;  4  Min.  Inst.  180-183,  553.  554; 
1  Barton's  Law  Practice,  134-175. 

11.  Peyton  v.   Harman,   22   Gratt.   643.     And   this   seems   to   be   the 
general    rule,    acknowledged    by    Prof.    Minor,    though    he    protests 
against  it  as  founded  upon  no  satisfactory  reason.     4  Min.  Inst.  550. 

—6 


82  ACTION   OF   DEBT  §    68 

that  neither  debt  nor  assiumpsit  would  lie  upon  them ;  but 
since  the  passage  of  the  statute  of  3  and  4  Anne,  by  which 
promissory  notes  were  rendered  negotiable,  which  statutes  have 
either  been  re-enacted  or  form  a  part  of  our  common  law  by 
adoption,  the  current  weight  of  authority  fully  sustains  debt  as 
an  appropriate  action  upon  these  instruments.12  At  common 
law,  before  the  statute  of  Anne  above  mentioned,  it  was  held 
that  the  action  of  debt  allowed  was  not  upon  the  note  or  other 
unsealed  writing,  but  only  upon  the  contract  witnessed  by  the 
note  or  writing,  and  the  action  at  common  law  was  on  the 
promise,  averring  and  proving  a  valuable  consideration,  and 
not  on  the  writing,  if  there  were  one.13  But  now  it  is  provided 
by  statute  in  this  State  that: 

"An  action  of  debt  may  be  maintained  upon  any  note  or 
writing  by  which  there  is  a  promise,  undertaking,  or  obliga- 
tion to  pay  money,  if  the  same  be  signed  by  the  party  who 
is  to  be  charged  thereby,  or  his  agent.  And  in  an  action  of 
assumpsit  on  any  such  note  or  writing,  the  rule  as  to  aver- 
ment and  proof  of  consideration  shall  be  the  same  as  in  any 
action  of  debt  thereon."14 

It  will  be  noted  that  the  action  is  now  brought  on  the  note 
or  writing,  and  not  on  the  contract  as  at  common  law.15  This 
has  an  important  effect  on  the  necessary  allegations  in  the 
declaration,  and  in  the  evidence  at  the  trial,  which  is  noticed 
hereafter  in  treating  of  the  declaration.16 

Another  very  important  statute  provides :  "Upon  any  note, 
check,  bill  of  exchange,  or  other  instrument  which  under  the 
laws  of  the  State  is  negotiable,  whether  the  same  be  payable 
in  or  out  of  the  State,  an  action  of  debt  or  assumpsit  may 
be  maintained  and  judgment  given  jointly  against  all  liable  by 
virtue  thereof,  whether  drawers,  indorsers,  or  acceptors,  or 
against  any  one  or  any  intermediate  number  of  them  for  the 
principal  and  charges  of  protest  if  the  same  should  be  pro- 

12.  5   Encl.  PI.  &  Pr.  899,  900;  4  Min.   Inst.  550. 

13.  4  Min.   Inst.  550,  702;   Peasley  v.   Boatwright,  2  Leigh   212. 

14.  Code,    §    2852. 

15.  Crawford  v.  Daigh,  2  Va.  Cases  521. 

16.  See  Infra,  §  72. 


§   69  WHAT  IS   A   SUM    CERTAIN  83 

tested,  with  the  interest  thereon  from  the  date  of  protest,  and 
in  case  of  such  bills  for  damages  also."17 

It  will  be  noted  that  the  above  statute  applies  only  to  nego- 
tiable instruments.  As  to  such  instruments  it  obviates  many 
of  the  difficulties  which  had  previously  existed  in  this  class 
of  cases. 

At  common  law,  assumpsit  did  not  lie  on  any  sealed  instru- 
ment, and  hence,  upon  such  instruments  it  was  not  a  con- 
current remedy  with  debt  even  where  the  promise  was  to  pay 
a  sum  certain  in  money.  But  now  it  is  provided  by  statute  in 
Virginia  that: 

"In  any  case  in  which  an  action  of  covenant  will  lie  there 
may  be  maintained  an  action  of  assumpsit."18  Under  this  stat- 
ute assumpsit  lies  on  all  sealed  as  well  as  unsealed  instruments, 
and  by  reason  of  its  greater  flexibility  and  wider  scope  is 
frequently  a  preferable  action.  Under  the  statute  last  men- 
tioned a  special  count  on  a  sealed  instrument  may  be  united 
with  the  common  counts  in  an  action  of  assumpsit,19  thus 
giving  the  plaintiff  the  advantage  if  he  fail,  for  any  reason, 
in  his  proof  on  the  sealed  instrument,  of,  nevertheless,  recov- 
ering under  the  common  counts  in  assumpsit,  provided  the 
evidence  warrants  such  recovery. 

§   69.   What  is  a  sum  certain. 

Perhaps  more  confusion  has  arisen  on  the  question  of  whether 
or  not  debt  would  lie  on  obligations  which,  though  in  terms 
of  dollars  and  cents,  were  conditioned,  in  some  event,  to  pay 
or  to  deliver  commodities  or  something  else  than  money,  than 
on  any  other  question  as  to  the  applicability  of  this  action.  The 
rules  applicable  to  such  cases  are  succinctly  stated  by  Prof. 
Graves,20  in  effect,  as  follows :  "When  a  certain  sum  of  money 
is  to  be  paid  in  a  commodity,  as,  for  example,  in  ivheat,  if 
the  quantity  of  the  commodity  is  not  fixed,  debt  lies  (if  the 
defendant  is  in  default)  for  the  money;  but  if  the  quantity 
is  fixed,  then  the  essence  of  the  contract  is  to  deliver  the  com- 

17.  Code,   §  2853. 

18.  Code,    §    3246a. 

19.  Grubb  v.   Burford,   98   Va.   553,   37   S.   E.   4. 

20.  Graves'  Notes  on  Pleading  (new)   18,  19. 


84  ACTION   OF   DEBT  §    69 

modity,  and  debt  does  not  lie,  but  assumpsit  or  covenant  for 
the  damages  flowing  from  the  breach  of  the  contract.  Thus 
if  I  promise  to  pay  $100.00  in  zvheat  by  a  day  certain,  and 
do  not  do  so,  debt  lies  for  the  $100.00;  but  not  if  my  promise 
be  to  pay  $100.00  by  the  delivery  of  100  busJiels  of  wheat. 
Nor  does  debt  lie  on  a  promise  to  pay  $100.00  in  bank  notes, 
not  a  legal  tender,  such  as  those  of  the  State  banks  before 
the  War;  for  here  the  quantity  is  considered  as  fixed  by  the 
denomination  of  the  notes,  and  they  are  of  a  fluctuating  value. 
But  though  a  sum  of  money  payable  by  the  delivery  of  a 
certain  quantity  of  a  commodity,  or  in  bank  notes  not  legal 
tender,  will  not  sustain  an  action  of  debt,  yet  the  contract  may 
be  for  the  payment  of  a  certain  sum  of  money,  with  the  privi- 
lege, as  an  alternative,  to  deliver  in^ead  a  fixed  quantity  of  a 
commodity,  or  bank  notes  not  legai  tender,  and  then  on  the 
promisors'  default  debt  lies  for  the  money.  For  the  option 
to  deliver  the  goods  or  notes  is  considered  terminated  by  rea- 
son of  the  promisors'  default."21 

The  above  principles  are  well  illustrated  by  the  following 
Virginia  cases :  In  Beirne  v.  Dunlap22  the  court  held  that  when, 
by  a  writing  obligatory,  the  obligors  promise,  on  or  before 
a  specified  day,  to  pay  the  obligee  eight  hundred  and  thirteen 
dollars  and  seventy-nine  cents  in  notes  of  the  United  States 
Bank,  or  either  of  the  Virginia  banks,  debt  would  not  lie  be- 
cause the  obligation  of  the  bond  was  simply  for  the  delivery 
of  a  commodity;  it  being  considered  that  such  bank  notes  were 
not  money,  but  simply  a  commodity  of  fluctuating  value,23  and 

21.  See,   also,  4   Min.   Inst.  551;    1    Barton's   Law   Practice,   136-139. 

22.  8   Leigh  514. 

23.  Judge    Tucker,    in    his    opinion    in    the    above    case,    states    the 
reasons   which    govern    in    the    decision    of    this    class    of    cases    very 
clearly.      He    says:     "An   obligation   to    deliver   wheat    or   bullion,    or 
bank   notes,   will   not   sustain   such   action.     For   it   is   determinate   in 
its   character,   and   does   not   generally   lie   where   the   amount   of   the 
recovery   in   money   must   be    ascertained    by    evidence    of   value    and 
by  the  intervention  of  a  jury.     It  is  true   that   it   has  been    in    some 
cases  decided  that  an  action  of  debt  will  lie  on  a  promise  to  pay  a 
sum  of  money  in  a  collateral  article,  provided  the  time  is  past  when 
the   payment   was   to   be   made.     Thus   in   the   case    cited   at   the   bar, 
debt  was  held   to  lie  upon  a  promise  to  pay    £20  in  watches.     The 


§    69  WHAT  IS   A   SUM    CERTAIN  85 

that  the  use  of  the  terms  "dollars  and  cents"  was  simply  the 
method  adopted  of  measuring  the  quantity  of  the  commodity 
to  be  delivered.  Indeed,  it  could  not  well  be  expressed  in  any 
other  manner. 

In  the  case  of  Butcher  v.  Carlile,24  the  court  held  that  when 
by  bond  the  obligor  bound  himself  to  pay  a  certain  sum  of 
money  with  interest  "which  sum  may  be  discharged  in  notes 
or  bonds  due  on  good  solvent  men  residing  in  the  county  of 
Randolph,  Virginia,"  that  this  was  a  bond  for  the  payment  of 
money  for  which  debt  would  lie.  The  reason  given  for  the 
decision  was  that  the  right  to  discharge  the  obligation  in  notes 
or  bonds  of  the  kind  mentioned  was  a  mere  privilege  to  the 
obligor,  which  he  had  his  election  to  exercise  or  not  at  his 
pleasure  on  or  before  the  day  when  the  obligation  became 

debt  was  clearly  ascertained  and  determinate.  The  defendant  hav- 
ing failed  to  make  payment  in  watches,  which  was  an  indulgence 
to  him,  became  liable  to  pay  money,  for  it  is  obvious  that  no  action 
of  any  kind  could  lie  for  the  watches  themselves.  Debt  or  covenant 
were  the  only  remedies  which  the  creditor  could  have,  and  in  either 
he  could  only  recover  money,  and  in  both  he  must  have  recovered 
identically  the  same  sum,  to-wit,  £20.  As  then  money  only  could 
be  recovered,  and  the  sum  to  be  recovered  was  determinate,  debt 
well  lay  for  it."  And  further  on  he  says:  "I  take  the  distinction, 
then,  to  be  this:  When  the  promise  is  to  pay  a  determinate  sum  in 
an  article  of  fluctuating  or  uncertain  value,  if  the  quantity  is  not 
fixed,  so  that  the  debtor  must  pay  the  full  amount  of  the  debt 
whether  the  price  of  the  article  be  high  or  low,  debt  will  lie  for  the 
demand.  But  if  the  quantity  be  fixed,  so  that  at  the  day  of  payment 
it  may  fall  short  of  the  debt,  then  debt  will  not  lie,  because  the  es- 
sence of  the  contract  was  the  delivery  of  the  article,  and  the  cred- 
itor can  only  recover  the  value.  As  if  I  acknowledged  myself  to 
owe  500  dollars  payable  in  wheat  at  a  certain  day,  and  I  fail  to  de- 
liver the  wheat  at  the  day,  debt  will  lie;  for  I  owed  the  full  sum  of 
500  dollars,  whether  I  paid  it  in  coin  or  wheat.  But  if  I  promise  to 
pay  500  dollars  by  the  delivery  of  500  bushels  of  wheat,  then  debt 
will  not  lie,  though  the  day  be  past;  for  peradventure  the  wheat  at 
the  day  of  payment  was  worth  less  than  500  dollars." 

24.  12  Gratt.  520.  Judge  Moncure  said  in  his  opinion:  "While, 
therefore,  certain  general  rules  have  been  adopted,  as  means  of  as- 
certaining the  intention  of  parties;  the  end  in  view  in  every  case 
is  to  ascertain  the  intention  from  the  contract;  and  when  so  ascer- 
tained, effect  will  be  given  to  it,  if  lawful." 


86  ACTION   OF  DEBT  §    69 

due,  but,  having  failed  to  exercise  this  privilege,  he  became 
liable  absolutely  for  the  money,  and,  of  course,  to  an  action 
of  debt  for  its  recovery. 

In  Dungan  v.  Henderlite25  the  court  held  that,  when  an  ob- 
ligation was  to  pay  eight  hundred  dollars  for  the  purchase  money 
of  land,  "payable  in  the  currency  of  Virginia  and  North  Caro- 
lina money,"  this  was  a  promise  to  pay  this  sum  in  the  cur- 
rency named,  and  an  action  of  debt  could  not  be  maintained 
upon  it.  The  court  repudiated  the  theory  advanced  by  counsel 
that  this  was  a  condition  for  an  alternative  payment  in  a  com- 
modity, but  said  that  payable  meant  to  be  paid  and  not  may  be 
paid.  In  this  case  "currency"  was  held  to  mean  nothing  more 
than  bank  paper  then  currently  passing  as  money  and  which  was 
enumerated  in  dollars  and  cents  as  specie  is,  and  the  court 
said  that,  this  being  so,  the  quantity  of  the  Virginia  and  North 
Carolina  currency  was  fixed,  and  the  contract  was  equivalent 
to  an  engagement  to  pay  bank  notes  amounting  to  $800.00, 
or  so  many  bank  notes  as  on  their  face  would  nominally  make 
that  sum,  and  was  governed  by  the  decision  in  Beirne  v.  Dun- 
lap,  supra. 

That  there  is  a  difference  between  the  contract  to  pay  in 
bank  notes  and  in  some  other  commodity  is  illustrated  by  the 
case  of  Lewis  v.  Long.26  In  that  case  an  action  of  debt  was 
brought  on  a  bond  for  $250  "to  be  paid  in  trade,  such  as  is 
to  be  had,  deer-skins,  furs,  flax,  snake-root,  beef,  pork,  bacon, 
etc.,  for  value  received."  No  question  seems  to  have  been 
raised  as  to  debt  being  the  proper  remedy.  Judge  Roane,  on 
page  151,  said:  "This  is  an  action  of  debt  brought  by  the  ap- 
pellant against  the  appellee  in  the  county  court  of  Harrison. 
It  was  an  action  for  money,  although  it  was  contemporaneously 
agreed  and  stipulated  in  the  bill  itself,  that  deer-skins  and  other 
articles  would  be  received  in  payment.  In  2  Bac.  278  we  are 
told  that  in  the  case  of  a  bill  for  £20  to  be  paid  in  watches, 
an  action  of  debt  must  be  brought  for  the  money,  and  not 
for  the  watches,  because  they  are  of  uncertain  value." 

In  the  case  of  Dungan  v.  Henderlite,  supra,  Judge  Christian, 

25.  21  Gratt.  149. 

26.  3   Munf.  136. 


§    69  WHAT  IS  A   SUM    CERTAIN  87 

on  page  152,  refers  to  the  above  case,  and  says  that  the  only 
question  raised  was  one  of  jurisdiction  of  the  appellate  court, 
but  "it  was  evident,  however,  that  upon  such  a  contract  the 
liability  of  the  obligor  was  to  pay  money,  with  the  privilege 
of  paying  in  trade,  etc.,  when  the  payment  was  due;  and  in 
default  of  his  paying  in  the  mode  stipulated,  the  obligee  had 
the  right  to  demand  money ;  and  the  action  of  debt  would 
therefore  lie,"  and  so  distinguished  it  from  the  case  in  which 
he  was  delivering  the  opinion. 

Where  a  bond  was  executed  conditioned  to  pay  on  demand 
$2,400  "in  gold  or  silver,  or  the  equivalent  thereof"  it  was 
held  that  this  was  a  promise  to  pay  $2,400  in  gold  or  silver 
coin,  or  the  equivalent  thereof,  that  what  was  meant  was  money 
not  bullion,  and  that  debt  could  be  maintained  upon  the  bond.27 
In  Minnick  v.  Williams28  the  court  held  that  where  a  bond 
is  conditioned  to  pay  $350  "payable  in  monthly  installments, 
either  in  goods  at  regular  prices,  or  current  money,"  and  at 
the  times  the  amounts  are  payable  neither  the  goods  are  de- 
livered nor  the  money  paid,  debt  will  lie,  as  this  is  an  obli- 
gation to  pay  money,  with  the  privilege  to  the  obligor  to 
discharge  the  money  obligation  by  the  delivery  of  the  goods 
at  regular  prices  in  equal  amount,  on  or  before  the  time  of 
payment,  and  having  failed  to  exercise  this  privilege  he  was 
held  liable  absolutely  for  the  money,  and  to  an  action  of 
debt  for  its  recovery. 

In  Crawford  v.  Daigh,29  decided  by  the  general  court  in 
1826,  it  was  held  that  debt  will  lie  "on  a  note  in  writing  for 
the  payment  of  $64  in  good  State  Bank  paper,  payable  one  day 
after  date,  for  value  received."  The  opinion  is  very  brief. 
Referring  to  the  language  "State  Bank  paper,"  it  was  said: 
"A  note  for  the  payment  of  so  much  money  in  a  known  com- 
modity on  a  certain  day  is,  after  the  day  passed,  a  note  for 
the  payment  of  money.  *  *  *  We  think  that  State  Bank 
paper  was  not  here  mentioned  as  contradistinguished  from 
money,  but  from  other  paper  in  circulation  then  less  valuable 

27.  Turpin  v.  Sledd's  Ex'r,  23  Gratt.  238. 

28.  77   Va.   758. 

29.  2  Va.  Cases,  521. 


88  ACTION   OF   DEfcT  §    69 

than  money."  The  court  did  not  notice  the  fact  that  the 
amount  of  this  commodity  was  fixed  by  the  language  used, 
and  that  the  contract  with  the  parties  was  only  for  the  de- 
livery of  a  specific  quantity  of  a  given  commodity,  that  is, 
for  State  Bank  paper  of  the  face  value  of  $64.  This  holding, 
as  well  as  certain  Kentucky  cases  taking  a  similar  view,  was 
distinctly  disapproved  in  Beirne  v.  Dunlap,  supra.  It  is  true 
that  it  is  cited  in  Butcher  v.  Carlile,  supra.,  Dungan  v.  Hender- 
lite,  supra.,  and  Minnick  v.  Williams,  supra.,  but  usually  for 
the  general  proposition  that  debt  will  lie  for  a  promise  to  pay 
money  in  a  commodity,  the  amount  of  which  is  not  fixed,  and 
so  far  the  case  is  sound.  But  in  so  far  as  it  undertakes  to 
decide  that  a  promise  to  pay  $64  in  State  Bank  paper  is  a 
promise  to  pay  money  in  a  commodity  the  quantity  of  which 
is  not  fixed,  it  is  out  of  harmony  with  the  .later  Virginia 
cases  on  the  subject.  On  its  face  it  is  a  promise  to  deliver 
a  fixed  quantity  of  a  designated  commodity  at  a  particular 
time,  for  which  an  action  of  debt  will  not  lie,  and  it  would 
not  seem  to  be  material  whether  the  undertaking  to  deliver 
the  commodity  was  to  be  performed  in  one  day  or  one  year. 
The  principle  would  be  the  same.  It  is  true  that  Judge 
Moncure,  in  Butcher  v.  Carlile,  supra,  undertakes  to  distinguish 
Crawford  v.  Daigh  from  Beirne  v.  Dunlap  by  the  fact  that  in 
one  case  the  paper  was  payable  one  day  after  date,  and  in 
the  other  more  than  a  year  after  date,  and  that  the  promise 
to  deliver  one  day  after  date  showed  that  the  intention  of  the 
parties  was  that  payment  should  be  made  in  currency  of  equal 
value  to  money,  and  that  the  intention  of  the  parties  as  gathered 
from  the  contract  would  govern  the  form  of  action,  but  this 
distinction  does  not  seem  to  rest  upon  any  sound  basis.  The 
same  argument  might  be  made  with  reference  to  a  promise  to 
deliver  stocks,  as,  for  example,  to  pay  $64  in  the  stock  of  the 
Western  Union  Telegraph  Company,  and  yet  we  all  know  that 
at  times  the  value  of  these  stocks  vary  considerably  from  day 
to  day.  According  to  the  Virginia  holding,  as  indicated  in 
the  cases  above  cited,  Crawford  v.  Daigh  must  be  regarded  as 
being  unsound  in  principle,  and  as  having  been  repudiated  by 
the  later  eases.  .  Upon  paper  of  this  class,  the  safer  course  to 
be  pursued  in  Virginia  is  to  bring  assumpsit,  and  outside  of 


§  70        DEBT  TO  RECOVER  STATUTORY  PENALTIES          89 

Virginia,    either   covenant   or   assumpsit,    according    to    whether 
the  paper  is,  or  is  not,  sealed. 

§   70.    Debt  to  recover  statutory  penalties. 

It  is  provided  by  statute30  that  penalties  provided  for  the 
violation  of  the  license  or  revenue  laws  of  the  State  may  be 
recovered  by  action  of  debt,  indictment,  or  information,  and 
the  procedure  in  the  action  of  debt  in  such  cases  is  outlined 
and  prescribed ;  and,  by  another  statute,31  it  is  enacted  that, 
when  a  fine  without  corporate  punishment  is  prescribed,  the  same, 
if  over  $20,  may  be  recovered  by  action  of  debt,  or  action  on 
the  case,  or  by  motion,  the  proceeding  to  be  in  the  name  of 
the  Commonwealth. 

But,  independent  of  an  express  statutory  sanction,  debt  is 
the  peculiarly  appropriate  action  to  recover  statutory  penalties, 
and  when  a  statute  gives  a  penalty  to  be  recovered  by,  "bill, 
plaint  or  information"  the  action  of  debt  may  be  brought  on 
the  statute,  it  being  comprehended  in  the  word  "bill."32  So, 
also,  it  has  been  held33  that  under  the  statutory  provision  en- 
acting that  on  a  failure  to  construct  cattle  guards,  a  railroad 
company  should  pay  the  landowner  $5  for  every  day  of  such 
failure,  the  remedy  of  the  landowner,  in  the  event  of  a  non- 
compliance  with  the  statute  on  the  part  of  the  company,  was 
an  action  of  debt  to  recover  the  penalty,  and  that  an  action 
on  the  case  would  not  lie.  The  court  says :  "When  a  statute 
imposes  a  penalty  for  the  nonperformance  of  a  duty  prescribed, 
no  part  of  which  penalty  can  accrue  to  the  commonwealth,  and 
the  statute  provides  no  particular  mode  by  which  the  person 
aggrieved  may  recover  the  penalty,  the  common-law  action  of 
debt  may  be  maintained  therefor,  and  is  proper.  *  *  * 

"The  recovery  in  cases  like  this  is  not  measured  by  the  dam- 

30.  Code,   §§   575,   576. 

31.  Code,  §   712.     See,  also,   Idem,   §§  713,  714.     See,  also,  §   3652a, 
providing  for  an  action   of  debt  to  recover,   in   the   case  of  laboring 
men,  payments   enforced  by  unlawful   attachment   or   garnishment  of 
exempted  wages. 

32.  Sims  v.   Alderson,   8    Leigh   479;    1    Barton's   Law   Practice   200, 
201;  5  Encl.  PI.  &  Pr.,  p.  907. 

33.  Russell  v.  Louisville  &  N.  R.  Co.,  93  Va.  322,  25  S.  E.  99. 


90  ACTION   OF   DEBT  §    70 

.ages  sustained.  The  verdict  does  not  sound  in  damages,  but 
is  a  sum  'eo  nomine  and  in  numero;  otherwise  in  an  action  on 
the  case.  The  common  law  action  of  debt  lies  whenever  the 
demand  is  for  a  sum  certain,  or  is  capable  of  being  readily 
reduced  to  a  certainty,  and  is  the  appropriate  action  for  the 
recovery  of  a  statutory  penalty,  upon  the  ground  of  an  im- 
plied promise  which  the  law  annexes  to  the  liability." 

On  the  other  hand  it  has  been  held  in  West  Virginia,34  con- 
struing a  mining  statute,  which  provided  that  "if  any  person  shall 
violate  this  section,  he  shall  forfeit  five  hundred  dollars  to  any  per- 
son injured  thereby  who  may  sue  for  the  same,"  that  the 
penalty  prescribed  might  be  recovered  by  the  person  injured 
in  an  action  of  trespass  on  the  case;  that  when,  as  in  this 
case,  the  statute  prescribes  the  penalty  or  the  sum  to  be  for- 
feited, but  not  the  form  of  action,  debt  being  the  usual  remedy 
will  lie;  or  the  form  of  action  may  be  such  as  the  particular 
nature  of  the  wrong  or  injury  may  require,  such  as  an  action 
of  assumpsit,  or  of  trespass  on  the  case.  In  the  case  last 
cited  damages  were  not  recovered,  but  simply  the  penalty  pre- 
scribed by  the  statute;  the  court  holding  that  the  term  "injured" 
used  in  the  statute  meant  the  wrong  clone  the  party  by  the 
violation  of  the  statute.  There  seems  to  be  no  difference  be- 
tween this  case  and  Russell  v.  Louisville  &  N.  R.  Co.,  supra., 
and  the  two  cases  seem  to  be  in  direct  conflict  on  the  point 
•as  to  whether  debt  is  the  exclusive  or  simply  a  permissive  ac- 
tion to  recover  statutory  penalties  like  the  above.  The  West 
Virginia  case  was  decided  April  1,  1896,  and  the  Virginia  case 
July  9,  1896,  making  no  reference  to  the  former.  If  both  dam- 
ages and  a  statutory  penalty  are  claimed,  a  remedy  therefor  is 
given  in  Virginia  by  an  action  of  trespass  on  the  case  by 
Acts  1901-2,  p.  385,  amending  §  2900,  Code  of  Virginia.35 

34.  Mapel  v.  John,  42  W.  Va.  30,  24  S.   E.  608,  32  L.  R.  A.  800,  57 
Am.   St.    Rep.   839. 

35.  This    section   provides:     "Any   person   injured   by   the   violation 
•of  any  statute  may  recover  from   the   offender  such   damages   as   he 
may  sustain  by   reason   of  the  violation,   although   a   penalty   or   for- 
feiture be  thereby  imposed,  unless  the  same  be  expressly  mentioned 
to  be  in  lieu  of  such   damages.     And  the  damages  so   sustained,   to- 
gether with   any  penalty   or   forfeiture   imposed   for   the   vio'lation   of 


§    71  DEBT    ON    JUDGMENTS    AND    DECREES  91 

Debt,  however,  may  still  be  brought  to  recover  the  statutory 
penalty  only.  It  will  be  observed  that,  under  the  above-men- 
tioned statute,  when  an  act  results  in  actual  injury  to  another, 
the  latter  is  not  precluded  from  recovering  his  real  damages 
by  reason  of  the  fact  that  such  injurious  act  is  also  penalized 
by  statute.  He  may  recover  his  actual  damages  and  the  statu- 
tory penalty  all  in  one  action  of  trespass  on  the  case,  setting 
them  forth  in  separate  counts.  On  the  other  hand,  if  an  act 
be  merely  malum  prohibitum,  and  its  commission  entails  no 
actual  damage  to  another,  the.  fact  that  such  act  is  penalized 
by  statute  and  thereby  rendered  unlawful  does  not  give  to 
the  one  for  whose  benefit  the  penalty  is  provided  a.  further 
right  of  action  for  damages.  The  purpose  of  the  statute  was 
merely  to  preserve  to  the  person  injured  the  right  to  maintain 
his  action  for  the  injury  he  may  have  sustained  by  reason  of 
the  wrongdoing  of  another,  and  to  prevent  the  wrongdoer  from 
setting  up  the  defence  that  he  had  paid  the  penalty  of  his 
wrongdoing  under  a  penal  statute.  It  was  not  intended  to 
create  a  new  ground  of  action  for  damages.36 

§   71.    Debt  on  judgments  and  decrees. 

An  action  of  debt  is  always  the  proper,  and  in  most  cases, 
the  exclusive  remedy,  when  an  action  is  desired  to  be  brought 
on  a  judgment.37  Although  judgments  may  be  enforced  within 

the  statute,  may  be  recovered  in  a  single  action  of  trespass  on  the 
case  upon  proper  counts  when  the  same  person  is  entitled  to  both 
damages  and  penalty:  provided,  that  nothing  herein  contained  shall 
affect  the  existing  statutes  of  limitation  applicable  to  the  foregoing 
causes  of  action  respectively." 

36.  Connelly  'v.  W.  U.  Tel.  Co.,  100  Va.  51,  40  S.  E.  618,  56  L.  R. 
A.   663,   93   Am.    St.    Rep.   919;    Hortenstein   v.   Va. -Carolina    Ry.    Co., 
102  Va.   914,   923,  47   S.   E.   996. 

Debt  lies  on  §  1292,  Code,  prescribing  penalties  against  telegraph 
companies.  W.  U.  Tel.  Co.  v.  Bright,  90  Va.  778,  20  S.  E.  146.  For 
form  of  declaration  see  Gregory's  Forms  No.  39.  For  the  essentials 
of  such  a  declaration  in  debt,  see  W.  U.  Tel.  Co.  v.  Powell,  94  Va. 
268,  26  S.  E.  828. 

37.  5   Encl.   PI.   &   Pr.   904;   11   Idem   1113;   Clarke's  Admr.  v.   Day, 
2  Leigh  187;  Drapers'  Exr's  v.  Gorman,  8  Leigh  628;  Kemp  v.  Mun- 
dell  and  Chapin,  9  Leigh   12. 


92  ACTION   OF  DEBT  §    71 

the  jurisdictions  wherein  they  are  rendered  by  execution  and 
other  similar  processes,  actions  on  the  judgment  even  in  such 
jurisdictions  are  allowed,  and  a  fortiori  is  this  the  case  with 
judgments  of  other  jurisdictions;  but  where  execution  is  avail- 
able as  a  remedy  a  second  action  on  the  judgment  is  not  favored 
and  the  courts  are  disposed  to  discourage  such  actions  by  sub- 
jecting them  to  rigorous  strictness.38  A  judgment  is  of  higher 
dignity  than  a  bond,  note,  account  or  other  similar  evidence 
of  debt,  and  hence  such  evidences  of  debt  are  merged  in  the 
judgment  ihereon;  but  one  judgment  is  of  no  higher  dignity 
than  another,  and  hence  there  is  no  merger.39  There  is  no 
reason,  therefore,  why  an  action  may  not  be  maintained  on 
a  judgment,  and  another  judgment  thereon  obtained,  and  the 
Virginia  court  has  held  that  the  vitality  of  a  judgment  is  not 
exhausted  by  one  action  thereon,  but  the  judgment  creditor 
is  entitled  to  pursue  successive  actions  until  satisfaction  is  ob- 
tained.40 

The  form  of  the  action  will  depend  somewhat  on  the  nature 
of  the  judgment  sued  on,  though  it  is  a  safe  rule  always  to 
bring  debt  as  in  such  case  the  pleader  cannot  fall  into  error. 
Under  the  "full  faith  and  credit"  clause  of  the  Constitution 
of  the  United  States41  a  judgment  of  a  court  of  record  of 

one  State  of  the  Union  is  not  to    be    regarded    in    the    other 

• 

38.  5    Encl.    PI.    &   Pr.   905,   note;    11    Idem   1089,   ct  seq.;    Kaufman 
v.  Richardson   (Ala.),  4  Anno.  Cases  168,  and  note;  Cardwell  i.  Tal- 
bott   (Corp.  Ct.   Danville,  Va.),  5  Va.   L.   Reg.  182,  and  note. 

39.  11   Encl.   PI.   &   Pr.    1087. 

40.  Kelly  v.  Hamblen,  98  Va.  383,  36  S.  E.  491.     In  this  case  Judge 
Keith   says:     "Subject   to   the   discretion   of  courts   in   the   imposition 
of  costs,  as   many   successive  actions  may  be  brought  upon   a  judg- 
ment  as   may   be   needful   in   the    opinion    of   the   plaintiff,    but   there 
can,    of   course,   be   but   one    satisfaction.     *     *     *     We    are    of   opin- 
ion that  a  suit  brought  to  enforce  the  lien  of  a  judgment,  and  pros- 
ecuted in  good  faith,  though  ineffectual,  is  not  a  bar  to  a  subsequent 
suit  by  the  same  plaintiff  against  the  same   debtor  to   enforce   satis- 
faction of  the  same'  judgment.     In  all  such  cases  it  will  be  the  duty 
of   the   courts   to    see    that    the   creditor   does    not   exercise   his    right 
capriciously  or  oppressively,  and  make  such  orders  and  decrees  with 
reference  to  the  imposition  of  costs  as  will  protect  litigants  against 
unnecessary   and   vexatious    suits." 

41.  U.  S.  Constitution,  Article  4,  §  1. 


§    71  DEBT    ON    JUDGMENTS    AND    DECREES  93 

States  as  a  foreign  judgment,  but  is  in  the  nature  of  a  domestic 
judgment  in  every  other  State,  whose  tribunals  are  to  allow 
it  the  same  force  and  efficacy  which  it  has  in  the  State  where 
it  is  pronounced.42  Such  judgments,  then,  being  treated  as 
domestic  judgments,  are  matters  of  record,  and  are  regarded 
as  of  such  a  solemn  nature  that  assumpsit  will  not  lie ;  debt  only 
being  the  remedy.  It  may,  therefore,  be  stated  that,  by  the 
great  weight  of  authority,  in  the  absence  of  statute,  where  an  ac- 
tion is  brought  on  a  domestic  judgment  (in  which  class  are  in- 
cluded judgments  of  courts  of  record  of  sister  States),  the  action 
must  be  debt,  and  no  other.43  But,  as,  according  to  the  weight  of 
authority,  a  foreign  judgment  is  not  a  record  but  only  prima  -facie 
evidence,  either  debt  or  assumpsit  may  be  brought  upon  such 
•foreign  judgments.44  So  also  debt  lies  on  a  justice's  judgment 
rendered  in  a  sister  State,  and,  a  fortiori,  on  judgments  of 
justices  in  this  State.45  It  would  seem  that  assumpsit  would 
also  lie  on  such  judgments,  as  judgments  of  a  court  not  of 
record  stand  on  a  similar  footing  to  foreign  judgments,46  and, 
as  we  have  seen,  assumpsit  lies  on  foreign  judgments.  It  is 
well  settled  that  the  judgment  which  will  support  an  action  of 
debt  need  not  have  been  pronounced  by  a  court  of  record.  And 
hence  debt  will  lie  on  judgments  of  surrogate  courts  and  of 
probate  or  orphan's  courts.47  In  earlier  days  there  was  doubt 
whether  a  decree  in  equity  should  be  allowed  to  rank  with 
a  judgment  at  law,  or  whether  it  could  be  the  basis  of  an 
action  of  debt,  in  a  court  of  law,  but  there  is  no  doubt  on 
that  question  now  for,  according  to  the  great  weight  of  au- 

42.  Clarke's  Adm'r  v.  Day,  2  Leigh  187;  11  End.  PI.  &  Pr.  1155. 

43.  11  Encl.  PI.  &  Pr.  1114;  Black  on  Judgments,  §  873.     See  post, 
§  83. 

44.  11    Encl.    PI.   &   Pr.   1115;   2    Black   on   Judgments,    §   848;    Dra- 
per's Exor's  v.   Gorman,  8  Leigh  628.     In  this  case  it  was  held  that 
the  District    of    Columbia  is  not  a  State  within  the  provisions  of  Art. 
4,  §  1,  U.  S.  Constitution,  and  that  the  judgments  of  its  courts  were 
to    be    treated    as    foreign    judgments    when    an    action    of    debt    was 
brought   on   one   of   them   in   Virginia. 

45.  11  Encl.  PI.  &  Pr.  1115,  note;  Idem,  1102;  Idem,  vol.  5,  p.  906, 
note. 

46.  5   Encl.   PI.   &  Pr.  906. 

47.  Idem. 


94  ACTION   OF  DEBT  §    72 

thority,  an  action  of  debt  can  be  maintained  to  enforce  a 
final  and  unconditional  decree  of  a  court  of  equity,  either 
domestic  or  foreign,  for  the  payment  of  a  specific  sum  of 
money.48 

§   72.    The  declaration  in  debt. 

The  declaration  in  this  action  is  generally  short  and  simple. 
A  great  variety  of  forms  thereof  will  be  found  in  the  works 
mentioned  in  the  margin.49  The  declaration  in  debt  on  a  simple 
contract  to  pay  money,  whether  oral  or  in  writing,  conforms 
to  that  in  assumpsit  save  that  it  is  alleged  that  the  defend- 
ant agreed  and  not  that  he  promised  to  pay.50  When  this 
promise  is  "specially  declared  on,  that  is,  where,  omitting  the 
common  counts  of  indebitatus,  etc.,  the  plaintiff  sets  forth  the 
promise  to  pay  as  the  ground  of  his  action,  a  valuable  considera- 
tion must  be  stated;"^  and  this  was  so  at  common  law  even  as  to 
promissory  notes,  as  the  theory  was  that  the  action  was  not 
upon  the  note  but  only  upon  the  contract  of  which  it  was  evi- 
dence.52 But  this  is  no  longer  the  case  in  Virginia,  for  now 
by  statute  it  is  provided  that  "An  action  of  debt  may  be  main- 
tained upon  any  note  or  writing  by  which  there  is  a  promise, 
undertaking,  or  obligation  to  pay  money,  if  the  same  be  signed 
by  the  party  who  is  to  be  charged  thereby,  or  his  agent  ;"53 
and  our  court  has  held  that  this  statute  now  allows  the  action 
of  debt  to  be  maintained  upon  the  note,  without  averring  or 
proving  any  consideration,  although  the  defendant  may  dis- 
prove it;  for  if  it  were  still  needful  to  aver  and  prove  a 
consideration  in  such  action  on  the  note  itself,  the  statute  just 

48.  See  full  note  appended  to  the  case  of  Du  Bois  v.  Seymour  (C. 
C.  A.),  11  Anno.  Cases  658;  5  Encl.  PI.  &  Pr.  1069,  et  seq.;  Cardwell 
v.  Talbott    (Corp.   Ct.   Danville,   Va.),  5   Va.   L.   Reg.   182,   and   note. 

49.  4    Min.     Inst.    1639-1671;     1     Barton's     Law     Practice     350-371; 
Gregory's    Forms,    16-61.      For  form   of   declaration   in    three    counts, 
on  bond,  note  and  open  account,  see  4  Min.  Inst.  1643. 

50.  4    Min.    Inst.   701.      For '  form    of   common    counts    in    debt,    see 
Idem,    pp.    1640-1641.      For    a    full    discussion    of    the    declaration    in 
debt  see   Idem,  pp.  701-705;  5   Encl.   PI.   &  Pr.   913,  et  seq. 

51.  4  Min.  Inst.  701;   5   Encl.  PI.   &  Pr.  914. 

52.  4  Min.  Inst.  702. 

53.  Code,   §   2852. 


§    72  THE  DECLARATION   IN  DEBT  95 

cited  would  be  inoperative.54  It  may  also  be  mentioned  that 
although  at  one  time  it  was  held  that  in  order  to  recover  in- 
terest it  must  be  claimed  in  the  declaration,55  the  contrary  was 
held  under  the  Virginia  statute  passed  in  1805  authorizing 
the  judgment  for  interest  though  not  demanded,56  and  it  is 
not  now  necessary  in  an  action  of  debt  to  demand  interest 
either  in  the  writ  or  in  the  declaration.  Interest  follows  the 
principal  as  the  shadow  follows  the  substance.  If  the  judg- 
ment is  rendered  in  such  case  by  default,  the  clerk  is  by  the 
present  statute57  directed  to  enter  it  for  the  principal  sum  due 
with  interest  thereon  from  the  time  it  became  payable  (or 
commenced  bearing  interest)  until  payment,  and  if  a  jury 
be  impanelled,  whether  to  try  an  issue  in  the  cause,  or  only 
to  inquire  of  damages,  it  may  at  its  discretion  allow  interest, 
and  fix  the  period  at  which  it  shall  commence.58 

It  should  further  be  noted  that  in  an  action  of  debt  upon 
an  obligation  to  pay  money  in  which  the  privilege  is  given  to 
the  debtor  as  an  alternative  to  deliver  something  else  than 
money,  such  as  notes  or  goods,  and  the  debtor  has  neither 
paid  the  money  nor  availed  himself  of  the  alternative  privilege 
to  deliver  the  commodity,  it  is  not  necessary,  in  declaring 
on  the  instrument,  to  notice  the  provision  as  to  the  alternative 
mode  of  payment  in  the  declaration.  As  was  said  by  Judge 

54.  Crawford   r.    Daigh,    2   Va.    Cases    521;    Peasley  v.    Boatwright, 
2    Leigh    212;    4    Min.    Inst.    702.      In    Crawford   v.    Daigh,   supra,   the 
court   said:     "The   action   is    either  founded   on   the   note,   or   on   the 
contract   which    caused    it   to   be   made.      On   the    latter,    debt   lay   at 
common  law,  and  if  it  still  is  needful  to  state  it  in  the   declaration, 
the  Act  of  Assembly,  though  it  says  so  in  so  many  words,  does  not 
give  an  action  of  debt  on  the  note,  and  has  no  operation." 

55.  Hubbard  v.   Blow,  1  Wash.  70;   Brooke  v.   Gordon,  2  Call.  212. 

56.  Wallace  v.  Baker,  2  Munf.  334;  Baird  v.  Peter,  4  Munf.  76. 

57.  Code,    §    3287. 

58.  Code,    §    3390;    Hatcher   v.    Lewis,    4    Rand.    152;    4    Min.    Inst. 
638-640.  For   a    discussion    of   "debt   on   bond    conditioned"    under    §§ 
3393  and  3394  of  the  Code  of  Virginia,  and  for  the  mode  of  assigning 
the  breaches  of  the  condition  in  such  action,  see  4  Minor's  Institutes 
703-4,    Graves'    Notes    on    Pleading    (old),,   pp.    126-127.      See    also,    § 
3377a  of  Code  giving  a  right  to  an  action  at  law  or  motion  on  lost 
bonds,  notes,   etc.;    Grave's   Notes    on   Pleading    (old),   pp.    127-128. 


96  ACTION   OF   DEBT  §    73 

Moncure  in  Butcher  v.  Carlile  :59  "The  privilege  is  in  the  nature 
of  a  defeasance,  which  need  never  be  stated  in  a  declaration, 
but  is  matter  of  defence,  and  ought  to  be  shown  in  pleading 
by  the  opposite  party." 

The  damages  in  debt  on  a  money-bond  or  on  a  promissory 
note  are  in  general  merely  nominal,  and,  therefore,  the  amount 
of  damages  stated  in  the  process  and  declaration  is  immaterial. 
There  are,  however,  two  instances  where  the  damages  are 
material  and  should  be  laid  at  a  sum  sufficient  to  cover  the 
case,  namely,  the  action  of  debt  on  a  bond  with  collateral  con- 
dition, and  on  a  penal  bond  where  the  principal  and  interest 
together  exceed  the  penalty.  In  the  last  case  the  excess  of 
interest  can  only  be  recovered  as  damages.™ 

§   73.    The  general  issues  in  debt. 

The  action  of  debt  by  reason  of  its  wide  application  as  a 
remedy,  and  the  consequent  diverse  circumstances  on  which  its 
use  may  be  founded,  has  three  general  issues.  These  are  as  fol- 
lows: 

1.  Nil  debet; 

2.  Non  est  factum; 

3.  Nul  tiel  record. 

These  general  issues  differ  widely  both  in  the  instances  to 
which  they  are  applicable,  and  in  their  respective  scopes.  It 
will,  consequently,  be  proper  to  discuss  each  of  them  separately, 
and,  briefly,  to  call  attention  to  the  salient  rules  which  govern 
their  use. 

1.  NIL  DEBET. 

Nil  Dcbet  is  the  general  issue  in  debt  on  simple  contracts; 
that  is,  contracts  not  under  seal.  It  is  one  of  the  broad  general 
issues,  and,  as  its  form  shows,61  simply  alleges  that  the  defend- 

59.  12    Gratt.   520.      See   also,    Minnick   v.    Williams,    77    Va.    758. 

60.  4    Min.    Inst.    639,    713;    1    Barton's    Law    Practice    260;    Allison 
•v.  The  Farmers'  Bank  of  Virginia,  6  Rand.  204;  Tennant's   Executor 
•v.  Gray,  5  Munf.  494;   Baker  v.  Morris,  10  Leigh  311. 

61.  The   plea   of  nil   debct,  as   given   by   Prof.    Minor    (4    Institutes, 
p.  770),   omitting  the  entitlements,  is  as   follows:   "And  the   said   de- 


§    73  THE  GENERAL  ISSUES  IN  DEBT  97 

ant  does  not  owe  the  money  claimed  by  the  plaintiff,  without  in- 
dicating in  any  manner  why  he  does  not  owe  it,  thus  leaving  the 
plaintiff  in  the  dark  as  to  the  real  defence,  and  giving  to  the  de- 
fendant the  fullest  possible  scope  as  to  what  defences  he  will 
bring  forward  to  avoid  the  payment  of  the  claim.  As  said  by 
Prof.  Minor:62  "Under  the  plea  of  nil  debet  the  defendant  may 
prove  at  the  trial  coverture  when  the  promise  was  made,63  lun- 
acy, duress,  infancy,  release,  arbitrament,  accord  and  satisfac- 
tion, payment,  a  want  of  consideration  for  the  promise,  failure 
or  fraud  in  the  consideration,  a  former  judgment  for  the  same 
cause  of  action,  illegality  in  the  contract,  as  gaming,  usury,  etc. ; 
or  that  the  contract  was  void  by  the  statute  of  parol  agreements ; 
and,  in  short,  anything  which  shows  that  there  is  no  existing  debt 
due.  *  *  *  The  statute  of  limitations,  bankruptcy,  and  ten- 
der are  believed  *  *  *  to  be  the  only  defences  which  may  not 
be  proved  under  the  plea,  and  they  are  excepted  because  they  do 
not  contest  that  the  debt  is  owing,  but  insist  only  that  no  action 
can  be  maintained  for  it."  But  while,  as  stated  above,  payment 
may  be  shown  under  nil  debet  this  will  not  be  permitted  unless  a 
list  of  payments  be  filed.64  That  accord  and  satisfaction  can  be 
given  in  evidence  under  a  plea  of  nil  debet,  seems  to  be  settled 
in  Virginia  (notwithstanding  an  early  case  to  the  contrary),  and 
by  the  weight  of  authority  elsewhere.65  While  an  award  may  be 
shown  under  nil  debet,  an  agreement  to  submit  cannot,  although 

fendant,  by  his  attorney,  comes  and  says  that  he  does  not  owe  the 

said  sum  of  dollars,  or  any  part  thereof,  in  manner  and  form 

as  the  said  plaintiff  hath  above  complained;  and  of  this  the  said  de- 
fendant puts  himself  upon  the  country." 

62.  4   Min.    Inst.   770.     See,   also,   Va.    Fire,   etc.,    Ins.    Co.   v.    Buck, 
88   Va.   517,   13    S.    E.    973;    Columbia   Accident   Ass'n   v.    Rockey,    93 
Va.  678,  25  S.  E.  1009.     While  probably  not  necessary  to  the  decision, 
each   of  these   cases   adopts   the   statement   of   Prof.   Minor. 

63.  This  would  no  longer  be  a  defence.     See  Code,  §  2286a,  giving 
to  married  women  full  power  to  contract. 

64.  Code,   §   3298;    Richmond,   etc.,   R.   Co.  v.  Johnson,   90   Va.   775, 
20   S.    E.   148. 

65.  See   authorities   cited   in   note   62,  ante,  and   Stephen   on   Plead- 
ing, §  147;  5  Encl.  PI.  &  Pr.  922;  1  End.  Law  &  Practice   (the  dis- 
continued work),  656.     See,  however,  M'Guire  v.  Gadsby,  3  Call.  204, 
and  7  Robinson's  Practice  549-550,  where  the  matter  is   discussed. 

—7 


98  ACTION    OF    DEBT  §    73 

it  be  irrevocable.  Such  an  agreement  is  a  matter  of  abatement 
only,  and  must  be  so  pleaded.66  If  the  submission  and  award  be 
made  in  a  pending  suit,  the  award  cannot  be  given  in  evidence 
under  nil  debet,  as  all  pleadings  speak  as  of  the  date  of  the  writ, 
and  at  that  time  there  was  no  award.67  Nil  debet  is,  ordinarily, 
a  bad  plea  to  debt  on  a  specialty.  If  the  acknowledgment  of  in- 
debtedness is  under  seal  this  imports,  or  dispenses  with,  a  con- 
sideration, and  hence  if  the  action  were  debt  on  a  bond  the  de- 
fendant could  not  plead  nil  debet,  which  plea  allows  a  denial  of 
consideration,  because  this  is  a  defence  forbidden  by  the  seal. 
He  cannot  plead  what  he  would  not  be  allowed  to  prove.68  As 
Mr.  Tucker  says,  in  the  reference  given  in  the  margin,  "the  bond 
acknowledges  the  debt,  and,  being  under  seal,  the  defendant  is 
estopped  to  deny  the  debt,  unless  he  denies  the  deed,"  in  other 
words,  unless  he  pleads  non  est  factum.  But  it  is  said  that  when 
the  specialty  is  only  inducement  to  the  action,  and  matter  of  fact 
its  foundation,  nil  debet  is  the  proper  plea.  A  prominent  illustra- 
tion of  this  is  an  action  of  debt  for  rent  under  a  sealed  lease.68a 
However,  as  is  well  said  by  Mr.  Barton :  "The  distinction  is  too 
refined  for  ordinary  practice,  and  the  safe  rule  is  never  to  plead 
nil  debet  to  a  specialty."6 8b 

As  we  have  seen,  a  judgment  of  this  State  or  of  a  sister  State 
is  regarded  as  a  conclusive  record,  and,  consequently,  it  is  held 
that  nil  debet  is  not  a  good  plea  to  an  action  of  debt  on  such  judg- 
ments. The  reason  given  is  that  nil  debet  assumes  that  the  mat- 
ter is  still  in  dispute  and  the  judgment  not  conclusive,  and  if  is- 
sue were  taken  on  that  plea  the  plaintiff  would  waive  the  conclu- 
sive effect  of  his  judgment.680  But  it  is  a  good  plea  to  an  action 
of  debt  on  a  foreign  judgment,  and  in  such  action  on  a  judg- 

66.  Riley  v.  Jarvis,  43  W.  Va.  43,  26  S.   E.  366. 

67.  Austin  v.  Jones,  Gilmer  341;   Harrison  v.  Brock,  1   Munf.  22. 

68.  5    End.   PI.    &   Pr.    924;   2  Tucker's    Commentaries    103;    Super- 
visors v.   Dunn,  27  Gratt.   608. 

68a.  5  Encl.  PI.  &  Pr.  924;  2  Tucker's  Commentaries  103,  108; 
Stephen's  Pleading  280,  281,  notes. 

68b.  1   Barton's   Law   Practice  491. 

68c.  Clarke's  Admr.  v.  Day,  2  Leigh  187;  Kemp  v.  Mundell  and 
Chapin,  9  Leigh  12;  5  Encl.  PI.  &  Pr.  925-926;  11  Idem,  1154-1155. 


§    73  THE  GENERAL  ISSUES   IN  DEBT  99 

ment  recovered  before  a  justice  of  the  peace  of  a  sister  State.684 
If,  after  judgment,  a  new  action  (not  on  the  judgment)  is 
brought  for  the  same  cause,  this  fact  (which  would  defeat  the 
second  action  by  reason  of  the  merger  of  the  cause  of  action  in 
the  first  judgment)  may  be  shown  under  the  general  issue  of  nil 
debet.69  As  the  action  of  debt  is  in  so  many  cases  brought  on 
writings,  the  signatures  to  which,  in  the  absence  of  statute,  it 
would  be  necessary  for  the  plaintiff  to  prove,  attention  is  called 
to  the  Virginia  statute  which  provides  that  "Where  a  bill,  decla- 
ration, or  other  pleading  alleges  that  any  person  made,  indorsed, 
assigned,  or  accepted  any  writing,  no  proof  of  the  fact  alleged 
shall  be  required,  unless  an  affidavit  be  filed  with  the  pleading 
putting  it  in  issue,  denying  that  such  endorsement,  assignment, 
acceptance,  or  other  writing  was  made  by  the  person  charged 
therewith,  or  by  any  one  thereto  authorized  by  him."70  It  has 
been  held  that  the  effect  of  this  statute  is  to  dispense  with  the 
proof  of  handwriting  in  actions  on  writings  not  under  seal; 
nothing  more.71  By  a  similar  statute72  it  is  enacted  that: 
"Where  plaintiffs  or  defendants  sue  or  are  sued  as  partners,  and 
their  names  are  set  forth  in  the  declaration  or  bill,  or  where 
plaintiffs  or  defendants  sue  or  are  sued  as  a  corporation,  it  shall 
not  be  necessary  to  prove  the  fact  of  the  partnership  or  incor- 
poration, unless  with  the  pleading  which  puts  the  matter  in  issue, 
there  be  an  affidavit  denying  such  partnership  or  incorporation." 

68d.  11  Encl.  PI.  &  Pr.  1158.  In  Draper's  Ex'rs  v.  Gorman,  8  Leigh 
628,  it  was  held  that  the  District  of  Columbia  is  not  a  State,  and 
that  the  judgment  of  one  of  its  courts  was  to  be  treated  as  a  for- 
eign judgment,  in  an  action  on  which  in  this  State  nil  debet  was  a 
proper  plea. 

69.  2   Black   on   Judgments,   §    785. 

70.  Code,    §    3279.      See    Chestnut   v.    Chestnut,    104    Va.    539,    52    S. 
E.   348. 

71.  Phaup  v.   Stratton,   9   Gratt.   619;   Clason  v.   Parrish,   93   Va.   24, 
24   S.    E.   471,   2   Va.    Law    Register   188,   and   note.      See    annotations 
to  the  above  section  of  the  Code  in  Pollard's  Code  of  Virginia,  and 
in  Justis'  Annotations  to  the  Code  of  West  Virginia,  p.  802.     As  to 
proof  of  signature  evidencing  release,  payment,  or  set-off,   see  Code 
of  Virginia,  §  3250.     If  the  instrument  were  under  seal  its  execution 
could  only  be  denied  by  a  plea  of  non  est  factum  which  is  required 
to  be  verified  by  oath.     Code,  §  3278. 

72.  Code,   §   3280.     See  Annotations  in   Pollard's  Code   of  Virginia, 
and  in  Justis'  Annotations  to   the  Code   of  West  Virginia,   p.   803. 


100  ACTION    OF    DEBT  §    73 

It  is  not  the  practice  to  write  out  the  plea  of  nil  debet,  but 
when  the  case  is  called  for  trial,  or  at  the  rules  if  the  defendant 
prefers,  the  counsel  for  the  defendant  simply  instructs  the 
clerk  to  enter  a  plea  of  nil  debet,  and,  under  the  above  statutes 
requiring  affidavits,  it  would  seem  to  be  sufficient  for  the  defend- 
ant to  enter  his  plea  of  nil  debet  orally  and,  at  the  same  time,  to 
offer  his  affidavit,  in  which  event  the  clerk  receives  it,  endorses 
it  and  pirs  it  with  the  other  pleadings,  etc.,  in  the  case.73 

The  broad  general  issues,  including  nil  debet,  are  so  general  in 
their  character,  and  the  defences  which  may  be  introduced  un- 
der them  are  so  numerous,  that  a  plea  of  nil  debet  gives  to  the 
plaintiff  no  intimation  of  what  the  actual  defence  is,  and  he  is 
required  to  be  prepared  to  meet  all  of  the  defences  which  may  be 
made  under  such  a  plea.  This  often  resulted  in  the  plaintiffs' 
being  taken  by  surprise.  This  objection  is  in  some  degree  obvi- 
ated by  the  statute  providing  that  the  court  may  order  a  state- 
ment to  be  filed  of  the  grounds  of  defence,  and,  on  a  failure  to 
comply  with  such  order,  may,  on  the  trial,  exclude  evidence  of 
any  matter  not  described  in  the  plea  so  plainly  as  to  give  the  ad- 
verse party  notice  of  its  character.74  But,  while  a  statement  of 
grounds  of  defence  which  is  so  indefinite  and  general  that  it 
gives  the  plaintiff  no  more  notice  of  the  defence  than  the  gen- 
eral issue,  is  insufficient,75  yet,  on  the  other  hand,  the  defendant 
may  allege  in  such  statement  as  many  different  grounds  of  de- 
fence as  his  imagination  may  suggest,  and,  if  he  includes  among 
such  grounds  his  actual  defences,  he  is  safe.  So,  even  with  the 
aid  of  §  3249  the  plaintiff  may  still  be  left  to  conjecture  in  de- 
termining what  the  real  defence  is. 

2.  NON  EST  FACTUM. 

This  is  the  general  issue  in  debt  on  a  sealed  instrument.  Un- 
like nil  debet  the  plea  of  non  est  factum  is  a  narrow  general  is- 

73.  Moreland  v.  Moreland,  108  Va.  93,  60  S.  E.  730.     This  case  was 
an   action   of  assumpsit  and   the   affidavit   required  was   under   §   3286 
of  the   Code,   but  the   same   reasoning  would   apply  to   an   action   ot 
debt   and   the    affidavits    above    discussed. 

74.  Code,   §   3249. 

75.  Chestnut   v.    Chestnut,    104   Va.    539,    52    S.    E.    348.      See    as    to 
proper    practice    Columbia    Accident    Association    v.    Rockey,    93    Va. 
678,   25    S.    E.    1009. 


§    73  THE  GENERAL  ISSUES  IN   DEBT  101 

sue,  and  under  it  no  defence  may  properly  be  given  in  evidence 
which  does  not  render  the  instrument  sued  on  void  as  distin- 
guished from  voidable.76  By  the  express  provisions  of  the  stat- 
ute no  plea  of  non  est  factum  may  be  received  unless  it  be  veri- 
fied by  oath.77  It  will  be  seen  by  reference  to  the  form  of  the 
plea  that  the  defendant  simply  alleges  that  the  instrument  sued 
on  "is  not  his  deed,"  and  it  is  not  usual  to  file  this  plea  unless  it 
is  intended  to  dispute  the  validity  of  the  instrument  sued  on; 
payment  being  the  plea  most  frequently  used,  or  a  sworn  equita- 
ble plea  under  §  3299  of  the  Code.78  As  said  by  Prof.  Minor:79 
"Under  this  plea  the  burden  of  proof  is  upon  the  plaintiff,  who 
affirms  the  execution  of  the  bond,  to  prove  it,  and  if  at  the  trial 
he  fails  to  do  so  satisfactorily,  the  verdict  should  be  against  him. 
But  the  defendant,  on  his  part,  may  show  at  the  trial  either  that 
he  never  executed  the  writing,  or  that  it  is  absolutely  void  in  law ; 
e.  g.,  for  coverture  or  lunacy;  or  because  since  its  execution  and 
before  the  commencement  of  the  suit,  it  has  been  erased  or  al- 
tered fraudulently,  or  in  a  material  part  by  the  opposing  party 
in  interest.  But  he  cannot  show  under  it  any  matter  which  makes 
the  deed  simply  voidable,  but  not  absolutely  void;  e.  g.,  infancy, 
duress,  fraud  in  the  consideration,  or  any  statutory  illegality, 
such  as  gaming,  etc.  These  must  be  the  subject  of  special  pleas, 
that  is,  in  an  action  on  a  sealed  instrument ;  but  in  an  action  of  debt 
or  assumpsit  on  an  unsealed  contract,  all  these  things  may  be 
proved  under  the  general  issues  of  nil  debet  and  non  assumpsit 
respectively."  If  a  defendant  admits  the  execution  of  the  sealed 
instrument,  and  intends  to  rely  upon  some  fact  rendering  it  void, 
the  usual  and  better  practice  is  to  plead  non  est  factum  and  to 
accompany  it  with  a  special  affidavit  setting  out  specifically  the 
facts  rendering  the  instrument  void. 

"Though  gaming  consideration    and  usury    rendered    a    bond 
void,  yet  it  has  always  been    held  that   they    must    be    specially 

76.  Graves'  Notes  on  Pleading  (old)  79;  Stephen's  Pleading,  §  146; 
5  Encl.  PI.  &  Pr.  923. 

77.  Code,    §    3278.      For    forms    of    plea    and    affidavit,    see    4    Min. 
Inst.  768;  Gregory's  Forms  328. 

78.  1    Barton's    Law    Practice    494;    2    Tucker's    Commentaries    104. 
116. 

79.  4  Min.  Inst.  769. 


102  ACTION    OF    DEBT  §    73 

pleaded.80  As  to  lunacy,  it  is  doubtful  whether  this  renders  a 
contract  void,  and  there  are  many  cases  to  the  contrary.''81  So, 
as  non  est  factum  goes  to  the  execution  of  the  instrument,  alleg- 
ing it  to  be  void  in  law,  under  such  plea  fraud  in  the  factum  may 
be  shown,  but  not  fraud  in  the  procurement.82  Failure  in  the 
consideration  of  the  contract,  or  fraud  in  its  procurement,  or 
breach  of  warranty  of  the  title  or  soundness  of  personal  prop- 
erty although  not  provable  under  non  est  jactwm  are,  neverthe- 
less, good  defences,  and  may  be  shown  by  a  special  plea  under 
§  3299  of  the  Code.8* 

3.  NUL  TIEL  RECORD. 

The  general  issue  in  debt  on  a  judgment  or  other  record  is  nul 
tiel  record,  a  narrow  general  issue  disputing  the  existence  of  any 
such  record.  So,  nul  tiel  record  is  the  general  issue  in  an  action 
of  debt  on  a  judgment  of  a  court  of  record  of  the  State  in  which 
it  is  rendered,  or  of  a  sister  State.84  Under  such  plea  it  may  be 
shown  that  there  is  no  such  judgment,  or  that  there  is  a  variance 
between  the  judgment  set  forth  in  the  declaration  and  that  de- 
scribed in  the  record,  and  as  a  general  rule  these  are  the  only 
questions  raised  by  the  plea.  However,  if  want  of  jurisdiction 
affirmatively  appears  on  the  face  of  the  record,  such  defence  is 
available  under  this  plea,  and  if  the  record  fails  to  show  juris- 
diction, it  cannot  be  aided  by  other  evidence.85  When  the  decla- 
ration vouches  the  record  the  burden  is  on  the  plaintiff  to  show 

80.  Graves'    Notes    on    Pleading    (old)    79-80,   and   authorities    cited. 

81.  Graves'    Notes    on    Pleading    (old)    80;    Gould    PI.    300;    Bishop 
on   Contracts    (2nd   ed.)    181;   Allis  v.   Billings    (Mass.),   6   Mete.   415, 
39  Am.  Dec.  749,  and  note;   Clark  on   Contracts,  268;   see,   however, 
Stephen's    Pleading,   280. 

82.  Hayes    v.    Va.    Mutual    Protective    Ass'n,    76  Va.  225;   Graves' 
Notes   on  PI.   (old)   80;   Columbia  Accident  Ass'n  v.   Rockey,  93   Va. 
678,   25   S.    E.   1009. 

83.  Columbia  Accident  Ass'n  v.  Rockey,  93  Va.  678,  25  S.  E.  1009. 
The    plea  of  non  est  factum  bars    the    action    only    as     to     him    who 
pleads   it,   and  does   not  affect   the   liability   of  the   other  defendants. 
Bush   v.   Campbell,   26    Gratt.   403;   Trust   Co.   v.    Price,    103    Va.    298, 
49  S.   E.  73. 

84.  11   Encl.   PI.   &  Pr.   1149,   1150. 

85.  11   Encl.  PI.  &  Pr.  1150-1153;   Wood  v.  Comm.,  4  Rand.  329. 


§    73  THE  GENERAL  ISSUES   IN  DEBT  103 

its  existence,  and  the  record  itself  is  the  only  evidence  receivable 
to  prove  its  contents.86  The  plea  of  mil  tiel  record  is  not  appli- 
cable to  a  declaration  on  a  judgment  of  a  court  not  of  record, 
or  of  a  foreign  country,  or,  it  is  said  to  a  decree  in  chancery,  be- 
cause such  decrees  are  said  not  to  be  records.87  The  proper  plea 
in  such  cases  would  be  nil  debet.88  In  the  United  States  Su- 
preme Court  and  many  of  the  States  it  is  held  that  nil  debet  may 
be  pleaded  to  an  action  on  a  domestic  judgment,  or  a  judgment 
of  a  sister  State,  for  the  purpose  of  denying  the  jurisdiction  of 
the  Court  which  rendered  the  judgment,  but  the  plea  would  not 
be  allowed  the  broad  scope  usually  given  it.  However,  this  is 
not  the  rule  in  the  majority  of  the  States,  but,  on  the  contrary, 
it  is  held  that  where  want  of  jurisdiction  in  a  domestic 
court,  or  a  court  of  a  sister  State,  is  available  as  a  defence  it 
should  be  made  by  a  special  plea  showing  with  particularity  such 
want  of  jurisdiction,89  and  certainly  this  would  always  be 

86.  4   Min.    Inst.    814;    11    End.   PI.    &   Pr.   1152-1153. 

87.  11    End-.   PI.    &   Pr.   1150. 

88.  Idem,  p.  1158. 

89.  Idem,    pp.    1156,    1157,    1159-1164;    5    End.    PI.    &    Pr.    925,    927; 
Thompson  v.  Whitman,  18  Wall.  462. 

In  Clarke  v.  Day,  2  Leigh  172,  and  in  Kemp  v.  Mundell,  9  Leigh 
12,  it  was  specifically  held  that  nil  debet  was  not  a  good  plea  to  an 
action  of  debt  on  a  judgment  of  a  court  of  record  of  a  sister  State. 
In  Draper's  Exrs.  v.  Gorman,  8  Leigh  628,  it  was  held  that  a  judg- 
ment of  a  District  of  Columbia  Court  was  a  foreign  judgment,  be- 
cause said  district  was  not  a  State  under  the  provisions  of  the  "full 
faith  and  credit"  cause  of  the  Constitution  of  the  United  States, 
and  that,  therefore,  nil  debet  was  a  proper  plea.  The  court  evidently 
considered  that  on  a  foreign  judgment  under  a  plea  of  nil  debet  the 
jurisdiction  of  the  court  could  be  inquired  into.  Judge  Parker  said,  on 
p.  636:  "There  are  defences  which  may  be  made  to  foreign  judg- 
ments without  trenching  upon  any  rule  of  sound  policy;  such  as 
want  of  jurisdiction,  or  that  the  defendant  had  no  notice  of  the  suit, 
or  that  the  judgment  was  obtained  by  fraud  or  founded  in  mistake, 
or  was  irregular  and  void  by  the  local  law;  and  there  ought  to  be 
some  general  issue  to  let  in  these  defences,  without  driving  the  de- 
fendant to  a  special  plea.  Therefore  I  think  the  plea  of  nil  debet 
ought  to  have  been  received."  This  was  only  as  to  foreign  judg- 
ments, however,  and  it  was  specifically  held  in  Bowler  v.  Huston, 
30  Gratt.  266,  that  want  of  jurisdiction  of  a  court  of  record  of  a 
sister  State  must  be  specially  pleaded  and  cannot  be  shown  under  nil 
debet.  The  opinion  in  the  case  is  full  and  exhaustive. 


104  ACTION    OF    DEBT  §    73 

the  safe  procedure.  Want  of  jurisdiction  of  a  foreign  court  may 
be  shown  under  nil  debet.90  No  matters  which  are  simply  in  dis- 
charge of  a  judgment,  such  as  payment,  accord  and  satisfaction, 
or  other  matters  arising  subsequent  to  the  judgment,  can  be 
shown  under  nul  tiel  record.  They  must  be  specially  pleaded.91 
Fraud,  if  relied  on,  must  be  specially  pleaded,  and  the  facts  con- 
stituting the  fraud  must  be  distinctly  averred  in  the  plea.92  The 
form  of  the  plea  may  be  found  in  the  reference  given  in  the 
margin.93  The  plea  concludes  with  a  verification,  and  the  replica- 
tion must  state  that  there  is  such  a  record  and  conclude  prout 
patet  per  recordum,  with  a  prayer  that  it  be  inspected  by  the 
court.94 

.  The  plea  raises  no  issue  as  to  the  validity  of  the  declaration, 
the  justice  of  the  original  judgment,  its  payment  or  satisfaction, 
its  assignment,  .fraud  in  its  procurement,  nor  clerical  error  in 
taxing  costs.95 

The  issue  made  upon  a  plea  of  nul  tiel  record  is  to  be  tried  by 
the  court  on  a  simple  inspection  of  the  record  produced,  and  not 
by  the  jury.  Of  course,  a  duly  authenticated  copy  of  the  record 
is  sufficient,  and,  if  it  be  destroyed,  secondary  evidence  of  it 
may  be  admitted.96  If  there  are  other  issues  besides  the  one 
made  by  this  plea,  the  issue  on  the  plea  of  nul  tiel  record  should 
be  tried  first.97 

90.  Draper's  Exrs.  v.  Gorman,  8  Leigh  628;  5  Encl.  PI.  &  Pr.  925. 

91.  11   Encl.   PI.   &  Pr.   1164. 

92.  11  Encl.  PI.  &  Pr.  1166.     But  as  to  foreign  judgments  see  quo- 
tation from  Draper's  Exrs.  v.  Gorman,  supra. 

93.  4   Min.   Inst.  1757. 

94.  11  Encl.  PI.  &  Pr.  1154  and  1166;  Eppes  v.  Smith,  4  Munf.  466. 

95.  11   Encl.   PI.  &  Pr.   1153. 

96.  11   Encl.  PI.  &  Pr.  1153,  1154;  4  Min.  Inst.  814. 

97.  Eppes  v.  Smith,  4  Munf.  466;  Burks'  Exrs.  v.  Treggs'  Exrs.,  3 
Wash.  215;   Gee  v.   Hamilton,  6  Munf.  32. 


CHAPTER  IX. 
ACTION  OF  COVENANT. 

§  74.  Nature    of   the    action. 

§  75.  When  covenant  lies. 

§  76.  When  covenant  does  not  lie. 

§  77.  Who  may  bring  covenant. 

§  78.  The   declaration. 

§  79.  Pleas    in    action    of    covenant. 

§  80.  Covenants   performed   and   covenants   not  broken. 

§  81.  Plea  of  non   damnificatus. 

§  82.  Assumpsit   as   a    substitute   for   covenant. 

§   74.    Nature  of  the  action. 

The  action  of  covenant  is  the  appropriate  remedy  for  the  re- 
covery of  damages  occasioned  by  the  breach  of  a  covenant  or 
contract  in  writing  under  seal.1  As  said  by  Prof.  Minor:  "The 
action  of  covenant  is  employed  to  recover  damages  sufficient  to 
make  amends  for  a  breach  of  covenant,  that  is,  of  a  contract  un- 
der seal.  The  covenant  may  be  to  pay  money  or  to  do  a  collat- 
eral thing.  If  it  is  to  pay  money  the  damages  which  the  cov- 
enantee  is  entitled  to  recover  by  way  of  compensation  or  amends 
for -the  breach,  is  the  money  covenanted  to  be  paid,  with  inter- 
est from  the  time  that  it  ought  to  have  been  paid.  When  the 
covenant  is  not  to  pay  money,  but  to  do  some  collateral  thing, 
there  is  no  uniform  standard  of  damages,  but  they  must  be  es- 
timated by  a  jury,  according  to  the  circumstances  of  each  case. 
Where  the  covenant  is  to  pay  money,  it  is  obvious  that  the  ac- 
tion of  debt  and  the  action  of  covenant  are  concurrent  remedies, 
and  may  either  of  them  be  resorted  to.  Thus  in  the  case  of  a 
common  money  bond,  the  action  of  debt  will  lie,  because  it  is  a 
promise  to  pay  a  specific  sum  of  money,  and  the,  action  of  cove- 
nant may  be  brought  because  it  is  a  contract  under  seal.  The 
amount  recovered  in  either  action  is  the  same;  but  there  is  a 
difference  in  the  light  in  which  the  transaction  is  regarded  in 
reference  to  the  two  actions  respectively.  When  debt  is  brought, 

1.  5  Encl.  PI.  &  Pr.  343. 


106  ACTION    OF   COVENANT  §    74 

the  plaintiff  demands  the  specific  sum  eo  numero,  which  the  de- 
fendant engaged  to  pay,  and  he  recovers  accordingly.  When  the 
action  is  covenant,  the  plaintiff  complains  that  the  defendant, 
having  made  a  very  solemn  promise  under  his  seal,  has  recklessly 
violated  it,  whereby  the  complainant  has  suffered  damage  to  an 
amount  which  he  names,  and  which  a  jury  must  be  called  to  as- 
sess, although,  as  we  have  seen,  the  invariable  criterion  of  amount 
in  practice  is  the  sum  which  the  defendant  ought  to  have  paid, 
with  interest."2  In  the  one  case  he  recovers  money  eo  nomine;  in 
the  other,  damages  ;  but  the  amounts  are  the  same.  The  covenant 
may  be  express  or  implied.3  As  said  in  Tucker's  Commen- 
taries:4 "Covenants  are  either  express  or  implied,  or  (which  is 
the  same  thing)  in  deed  or  in  law.  Express  covenants  are  set 
forth  in  terms  in  the  deed;  and  no  particular  form  of  words  is 
necessary  to  constitute  them.  Implied  covenants  are  those  which 
the  law  raises  from  the  character  of  the  transaction,  or  from  cer- 
tain technical  expressions  used  in  the  instrument.  Thus,  the 
word  'demise'  implies  a  covenant  for  quiet  enjoyment;  and  the 
words  'yielding  and  paying,'  a  covenant  to  pay  rent."5  But  it 
should  be  carefully  borne  in  mind  that  for  a  covenant  to  be  im- 
plied so  that  an  action  of  covenant  will  lie,  the  instrument  from 
which  the  implication  is  sought  to  be  drawn  must  have  been 
signed  and  sealed  by  the  party  sought  to  be  held  as  the  cov- 
enantor. Such  signature  and  seal  is  a  sine-  qua  non.  Thus  when 
in  a  deed  poll  a  promise  or  undertaking  is  imposed  upon  the 
grantee  (who  does  not  sign  the  deed),  the  grantee  by  accepting 
the  deed  is  held  to  be  liable  for  the  performance  of  such  promise 
or  undertaking,  on  the  ground  of  an  implied  contract  arising 
from  such  acceptance.  But  this  implied  contract  is  in  the  na- 
ture of  an  assumpsit,  and  is  a  simple  contract  on  which,  indeed, 
assumpsit  will  lie,  but  not  covenant.  Such  an  agreement  is  not 

2.  4    Min.    Inst.    426. 

3.  5   Encl.  PI.  &  Pr.  346;  2  Tucker's  Com.   121. 

4.  2  Tucker's  Com.  121. 

5.  So,  in  a  note  in  4  Va.  Law  Register  459,  the  editor  says:     "It 
seems  that  an  acknowledgment  of  a  debt,  under  seal,  when  not  made 
diverso    intuitu,    is    regarded    as    a    specialty,    though    the    promise    is 
merely   implied.      Powell   v.   White,    11    Leigh   309,   322;   3    Min.    Inst. 
347.     See  Wolf  v.  Violet,  78  Va.  57." 


§    75  WHEN    COVENANT   LIES  107 

a  specialty  or  contract  under  seal,  and  covenant  will  only  lie 
when  the  instrument  is  actually  signed  and  sealed  by  the  party 
or  by  his  authority.6 

§   75.    When  covenant  lies. 

Covenant  has  been  held  to  be  well  brought  in  the  following 
instances:  To  enforce  awards,  when  the  submission  is  under 
seal ;  to  recover  damages  for  breach  of  a  promise  to  pay  money 
when  the  promise  is  under  seal,  the  damages  being  the  debt  due, 
with  interest;  to  recover  damages  for  the  non-performance  of 
collateral  agreements  under  seal;7  upon  a  bond  payable  in  in- 
stalments, a  part  of  which  alone  are  due  (and  in  this  case  debt 
will  not  lie)  ;8  on  annuity  and  mortgage  deeds ;  on  leases  under 
seal  at  the  suit  of  the  lessee;  by  the  lessor  for  the  non-payment 
of  rent,  or  for  not  repairing;  on  a  sealed  guaranty;  for  breach 
of  a  covenant  to  save  harmless  from  a  judgment;  to  do  repairs, 
to  reside  on  the  premises,  or  to  cultivate  them  in  a  particular 
manner;  not  to  carry  on  a  particular  trade;  to  deliver  boards; 
and  on  a  bond  for  the  delivery  of  goods ;  upon  a  penal  bond, 
or  an  attachment  bond;  always  remembering  that  the  action  lies 
on  all  obligations  under  seal  to  pay  money  or  to  do  anything 
else,  but  that  it  lies  upon  no  contract  unless  it  be  in  writing  and 
under  seal,  and  against  no  person  save  he  who,  by  himself,  or 
his  duly  authorized  agent  acting  in  his  behalf,  has  executed  the 
sealed  instrument.9 

6.  Taylor  r.  Forbes,  101  Va.  658,  44  S.  E.  888;  Barnes  v.  Crockett's 
Admr.,  Ill   Va.  240,   68   S.   E.  983;    Harris  v.   Shields,   111   Va.   643,   69 
S.   E.   933;   West   Virginia,   etc.,   R.   Co.  v.   Mclntire,   44   W.   Va.   210, 
28  S.  E.  696;  note  to  Dawson  v.  Western  Maryland  R.  Co.,  15  Anno. 
Cases   683.     There   is   some   conflict  in  the  authorities   on   this  point, 
but   the    statement   in   the    text    is    believed    to    be    supported    by   the 
great  weight  of  authority. 

7.  4   Min.   Inst.    181-185;    Idem,   551,   552. 

8.  Peyton  v.   Harman,  22   Gratt.   643.     And  in   all   cases  where   the 
damages  are  unliquidated,  covenant  is  the  peculiar  remedy,  and  debt 
will  not   lie.     1    Barton's    Law   Practice   177;   5    End.   PI.    &  Pr.   344; 
Hogg's  Pleading  &  Forms  44. 

9.  Hogg's  Pleading  &  Forms,  43-45;  1  Barton's  Law  Practice  176- 
177;  5  Encl.  PI.  &  Pr.  345,  ct  scq.;  Taylor  v.  Forbes,   101  Va.   658,  44 
S.   E.   888. 


108  ACTION    OF    COVENANT  §§    76-77 

§   76.    When  covenant  does  not  lie. 

In  general  it  may  be  stated  that  the  action  of  covenant  will  not 
lie  upon  any  unwritten  contract,  nor  upon  a  contract  in  writing 
unless  it  is  under  seal  and  executed  by  the  defendant  or  his  duly 
authorized  agent.10  And  where  an  agreement  under  seal  has 
been  modified  by  a  subsequent  parol  agreement  upon  some  point 
essential  to  the  liability  of  the  defendant,  covenant  will  not  lie, 
but  assumpsit  is  the  proper  remedy.11 

It  has  also  been  held  that  an  action  of  covenant  will  not  lie 
on  a  deed  of  trust  executed  merely  for  the  collateral  security  of 
promissory  notes.  The  trust  deed  does  not  raise  the  note  to  the 
dignity  of  a  specialty,  and  a  promise  under  seal  cannot  be  im- 
plied from  a  deed  executed,  not  as  an  evidence  of  indebtedness, 
but  simply  to  create  a  security.  The  bare  recital  of  the  debt  in 
the  deed  of  trust  does  not  suffice  to  convert  the  simple  contract 
debt  secured  by  the  deed  of  trust  into  a  specialty.  A  deed  of 
trust  is  but  an  incident  to  the  debt;  it  is  not  the  debt  itself.12 

§   77.   Who  may  bring  covenant. 

As  a  general  rule,  the  covenantee  is  the  proper  person  to  main- 
tain an  action  on  a  covenant  for  its  breach.13  At  common  law 
an  indenture  or  deed  inter  paries  was  only  available  between  the 
parties  to  it  and  their  privies,  and  a  third  person  could  maintain 
no  action  on  a  covenant  therein,  although  named  in  the  instru- 
ment and  the  covenant  was  made  for  his  benefit.14  The  rule 
stated,  however,  did  not  apply  to  deeds  poll,  and  at  common  law 

10.  5   Encl.   PI.   &   Pr.   350. 

11.  5    Encl.    PI.    &    Pr.    351;    3    Rob.    Pr.    369;    Hogg's    Pleading    & 
Forms  45;   11   Cyc.   1027. 

12.  Wolf  v.  Violet,  78  Va.  57. 

13.  5    Encl.    PI.    &   Pr.   352,    357;    Bullock   v.    Sebrell,    6    Leigh    560; 
Poindexter  v.    Wilton,    3    Munf.    183;    Ross   v.    Milne,    12    Leigh    209; 
Stuart  v.  James   River,  etc.,  Co.,  24  Gratt.   294;   Newberry  Land  Co. 
v.   Newberry,  95   Va.   120,  27  S.   E.   899;   Jones  v.  Thomas,  21   Gratt. 
96.     See  also  monographic  note  on  the  Action  of  Covenant,  1  Wash. 
(Va.  Rep.  Anno.)  308. 

14.  See   cases   cited   ante,  note    13,   especially    Ross   v.    Milne;    also, 
Willard  v.   Worsham,   76   Va.   392;   Johnson   v.   McClung,   26   W.    Va. 
659;   5   Encl.  PI.   &  Pr.  357. 


§    78  THE  DECLARATION  109 

a  person,  though  not  a  party  to  a  deed  poll,  could  sue  upon  it  if 
the  instrument  showed  upon  its  face  that  it  was  made  for  his  ben- 
efit.15 

But  the  common-law  rule  has  been  so  far  modified  by  stat- 
ute in  many  States  that  it  is  now  generally  provided  that  the 
real  party  in  interest  may  bring  an  action  in  his  own  name  on  the 
covenant.16  In  Virginia  it  is  provided  by  §  2415  of  the  Code 
that  "if  a  covenant  or  promise  be  made  for  the  sole  benefit  of  a 
person  with  whom  it  is  not  made,  or  with  whom  it  is  made 
jointly  with  others,  such  person  may  maintain  in  his  own  name 
any  action  thereon,  which  he  might  maintain  in  case  it  had  been 
made  with  him  only,  and  the  consideration  had  moved  from  him 
to  the  party  making  such  covenant  or  promise."  However,  it  has 
been  held17  that,  under  this  statute,  in  order  for  one  not  a  party 
nor  a  privy  to  such  party  to  sue  upon  an  indenture  or  deed  in- 
ter paries,  he  must  be  named  or  definitely  pointed  out  in  the  in- 
strument itself  as  beneficiary,  and  that  extrinsic  evidence  is  not 
admissible  to  show  that  the  covenant  sued  on  was  made  solely 
for  his  benefit.18  Of  course,  the  original  right  to  sue  in  the 
name  of  the  contracting  party  is  not  destroyed  by  the  new  rem- 
edy allowed  by  this  statute,  but,  on  the  contrary,  remains  in  full 
force.19 

§   78.    The  declaration. 

Prof.  Minor,  in  his  Institutes20  says:  "As  the  action  of 
covenant  can  only  be  supported  on  a  deed,  there  is  less  variety 

15.  See   cases   cited  in  two  preceding  notes. 

16.  5  Encl.  PI.   &  Pr.  352;  Idem,  p.  358. 

17.  Newberry    Land    Co.    v.    Newberry,    95    Va.    120,    27    S.    E.    899. 
See  also  Mcllvane  v.  Big  Stony  Lumber  Co.,  105  Va.  613,  54  S.   E. 
473. 

18.  See    §    2860    of   the    Code    of   Virginia   for    a    somewhat    similar 
statute.     Mr.  Pollard  in  his  notes  to  §  2415,  Code,  makes  the  query 
whether   the   action   held   improper   in    Newberry   Land   Co.   v.    New- 
berry,  supra,  would   not  lie   under  §   2860.     See  4  Va.   Law   Register 
616,    where    the    editor    seems    to    think    that    it  would.     See   also, 
ante,  §  47. 

19.  Mutual    B.    Life    Ins.    Co.    v.   Atwood's    Admr'x,    24    Gratt.    497, 
509-510. 

20.  4   Min.   Inst.   706. 


110  ACTION    OF    COVENANT  §    78 

in  the  declarations  in  this  action  than  in  debt,  and,  therefore, 
but  few  observations  will  here  be  necessary,  especially  as  most 
of  the  rules  to  be  observed  in  framing  a  declaration  in  assumpsit 
or  debt  equally  apply  to  covenant. 

"The  doctrine  touching  the  statement  of  the  inducement  or 
introductory  matter  to  the  material  averments ;  the  mode  of 
setting  out  the  deed;  the  profert  of  it;  the  averments  of  condi- 
tions and  their  performance,  of  notice,  etc.,  and  the  statement 
of  the  breach  or  breaches  of  the  covenant,  are  essentially  the 
same  in  this  action  as  in  assumpsit  and  debt.  It  is  usual  after 
stating  the  breaches  of  the  covenant  declared  upon,  to  conclude 
by  alleging:  'And  so  the  said  plaintiff  says,  that  the  said  de- 
fendant (although  often  requested  so  to  do),  hath  not  kept 
his  said  covenant,  but  hath  broken  the  same,'  etc. ;  but  this  is 
a  merely  formal  allegation,  and  may  be  omitted."  Various  forms 
of  the  declaration  in  this  action  will  be  found  in  the  works 
referred  to  in  the  margin.21 

As  covenant  lies  only  on  sealed  instruments  and  as  the  seal 
imports  a  consideration,  it  is  held  that  the  covenant  should  be 
set  out  without  any  intermediate  inducements  or  statement  of  the 
consideration.22  A  promise,  or  words  equivalent  to  a  promise, 
must  be  averred  or  asserted  in  the  declaration.23 

The  covenant,  of  course,  must  be  recited,  but  it  is  sufficient 
to  set  out  in  the  declaration  the  substance  and  legal  effect  only 
of  such  parts  of  the  deed  as  are  necessary  to  entitle  the  plain- 
tiff to  recover,  and  the  whole  of  the  agreement  need  not  be 
recited.24  As  the  action  lies  on  sealed  instruments  only,  the 
declaration  must  state  that  the  contract  sued  on-  was  under 
seal;  but  there  are  certain  words  such  as  "indenture,"  "deed," 
or  "writing  obligatory,"  which  of  themselves  import  that  the 
instrument  is  sealed,  and  the  use  of  such  words  will  be  suffi- 

21.  4  Min.  Inst.  1691-1697;  1  Barton's  Law  Practice  409-415;   Greg- 
ory's   Forms,   9-15;    Hogg's    Pleading   &   Forms   305-309.      See   gener- 
ally, as  to  the  declaration  in  covenant,  the  last-named  work,  99-104; 
and  also  5   Encl.  PI.  &  Pr.   362-376;  2  Tucker's  Com.   126,   127. 

22.  Jones  v.  Thomas,  21  Gratt.  96;  5  Encl.  PI.  &  Pr.  365. 

23.  5   Encl.  PI.  &  Pr.  365. 

24.  Buster's    Exr.  v.   Wallace,  4   H.   &   M.   82;    Backus  v.   Taylor,   6 
Munf.  488;  5  Encl.  PL  &  Pr.  365,  366. 


§    78  THE  DECLARATION  111 

cient.25  Although  a  delivery  of  the  instrument  should  generally 
be  alleged,  the  authorities  are  conflicting  as  to  whether  such  an 
allegation  is  necessary.26 

It  may  be  stated  as  a  general  rule  with  respect  to  the  state- 
ment by  the  plaintiff  of  the  covenant  and  its  breach  that,  as 
he  is  suing  for  the  breach  of  a  contract,  he  must,  of  course, 
show  by  his  pleading  that  the  defendant  lias  broken  the  con- 
tract, and  that  he,  himself,  is  in  no  default,  but  has  performed, 
or  has  been  excused  from  performing,  all  acts  which  were  in 
the  nature  of  conditions  precedent  to  his  right  to  hold  the 
defendant  liable.27  Thus  in  an  action  by  the  lessee  against 
the  lessor  to  recover  damages  for  a  refusal  to  renew  the  lease,, 
the  lessee  must  aver  and  prove  performance  on  his  part,  at 
the  time  and  in  the  manner  stipulated  for,  of  all  that  was 
required  of  him  by  the  terms  of  the  lease,  as  a  condition  of 
such  renewal,  or  give  some  valid  excuse  for  his  nonperform- 
ance.28  The  breach  of  the  covenant  should  be  clearly  stated. 
The  common-law  method  of  doing  this  was  to  negative  the 
words  of  the  covenant,  and  this  is  generally  sufficient.  But 
it  may  be  well  assigned  in  other  words  coextensive  with  the 
covenant's  import  and  effect,  and  as  general  as  the  words  of 
the  covenant,  or  by  stating  the  covenant's  legal  effect,  provided 
that  the  facts  stated  in  the  declaration  necessarily  show  that 
the  covenant  is  broken.29  All  that  can  ever  be  required  is 
that  the  declaration  shall  state  a  breach  which  is  clearly  within 
the  covenant  declared  upon.30  The  object  of  this  action  being 
to  recover  damages,  they  should  always  be  stated  in  a  sum 
sufficiently  large  to  cover  any  possible  recovery,  but  are  usually 
averred  in  the  most  general  manner.31 

25.  5   End.  PI.   &  Pr.  366. 

26.  5   Encl.   PI.   &  Pr.  366. 

27.  See.   on   this   general    subject,    Harris   v.   Lewis,   5   W.   Va.   575;. 
Clark  r.  Franklin,  7  Leigh  1;  Buster  v.  Wallace,  4  H.  &  M.  82;  Aus- 
tin  v.   Whitlock,    1    Munf.   487;    note    on   the    Action    of   Covenant,    } 
Wash.   (Va.  Rep.  Anno.)   532-533;  5   Encl.  PI.   &  Pr.  365-374. 

28.  Grubb  v.  Burford,  98  Va.  553,  37  S.  E.  4. 

29.  5   Encl.   PI.   &  Pr.   369,  370;   Hogg's  Pleading   &  Forms   102. 

30.  Austin   v.   Whitlock,    1    Munf.   487;    5    Encl.    PI.    &   Pr.    370. 

31.  Hogg's  Pleading  &  Forms  102;  5  Encl.  PI.  &  Pr.  376. 


112  ACTION    OF    COVENANT  §§    79-80 

§   79.    Pleas  in  action  of  covenant. 

Although  Prof.  Minor  speaks  of  non  est  factum  as  being  the 
general  issue  in  covenant,32  it  is  said  that  strictly  speaking 
there  never  was  any  general  issue  in  the  action  of  covenant, 
as  the  plea  of  non  est  factum  only  puts  in  issue  the  execution 
of  the  deed  sued  on,  as  in  debt  on  specialty,  and  not  the 
breach  of  covenant,  or  any  other  defence.33  Non  est  factum 
pleaded  al6ne  admits  all  the  material  averments  of  the  decla- 
ration, except  the  execution  of  the  instrument  declared  upon, 
or  other  matters  rendering  the  instrument  void,34  and,  in  such 
case,  the  plaintiff  is  not  put  to  proof  of  any  thing  else  con- 
tained in  his  declaration,  except  to  show  the  amount  of  dam- 
ages. "In  order  that  other  defences  may  be  relied  upon,  they 
must  be  pleaded  specially."343  Thus  all  pleas  to  a  declaration 
in  covenant  are  in  effect  special  pleas.35  Among  such  matters 
which  must  be  specially  plead  may  be  mentioned  performance 
•of  the  covenant,  or  excuse  for  nonperformance ;  matters  of 
discharge  such  as  bankruptcy,  accord  and  satisfaction  after 
breach,  or  arbitration  and  award ;  former  recovery,  foreign  at- 
tachment, release,  tender,  payment,  set-off,  and  non  damnifi- 
catus.3Q 

§   80.     Covenants  performed  and  covenants  not  broken. 

A  plea  of  "covenants  performed"  or  one  of  "covenants  not 
broken"  is  a  proper  plea  to  an  action  alleging  the  breach  of 
covenants.  If  the  allegation  in  the  declaration  is  of  the  ex- 
istence of  an  affirmative  covenant,  the  plea  should  be  "covenants 
performed"  for  the  declaration  would  be  an  allegation  of  an 
•affirmative  covenant  with  a  negation  of  its  performance,  and 

32.  4  Min.   Inst.  772. 

33.  5  End.  PI.  &  Pr.  377,  378;  Hogg's  Pleading  &  Forms  183.     In 
the  reference  given   to   Minor's   Institutes,   above,   it   is   said  that  the 
rules  as  to  the  scope  and  effect  of  the  plea  of  non  est  factum  are  the 
same  in  covenant  as  in  debt,  so  it  will  be  unnecessary  to  enter  into 

'detail  here  with  respect  to  this  plea.     See  ante,  §  73. 

34.  See  ante,  §  73. 

34a.  5   Encl.   PI.    &   Pr.   378. 

35.  5    Encl.   PI.    &   Pr.   379. 

.36.  Hogg's  Pleading  &  Forms  195;  5   Encl.  PI.  &  Pr.  379-385. 


§    80  COVENANTS   PERFORMED  113 

the  plea  being  affirmative,  i.  e.,  "covenants  performed,"  would 
make  an  issue.  For  like  reasons  if  the  covenant  be  negative, 
as  that  the  defendant  would  refrain  from  doing  a  thing,  the 
plea  should  be  "covenants  not  broken."37 

Sometimes  the  action  is  on  a  bond  with  condition  to  do  or 
not  to  do  a  particular  thing.  Then  the  same  principle  applies, 
and  the  plea  would  be  "conditions  performed,"  or  "conditions 
not  broken"  as  the  case  may  be,  merely  substituting  the  word 
"condition"  for  the  word  "covenant"  in  the  pleas  first  above  men- 
tioned.38 The  plea  of  "covenants  performed,"  as  a  general  rule, 
must  show  specially  the  time,  place  and  manner  of  performing 
each  covenant,  and  if  it  fails  to  do  so  it  should  be  rejected.39 
The  issue  presented  by  the  plea  of  "covenants  performed"  is 
a  narrow  one,  limited  to  the  defences  indicated  by  the  language 
of  the  plea.  The  plea  can  only  be  supported  by  evidence 
which  shows  that  the  defendant  has  performed  his  covenant, 
and  not  by  evidence  excusing  his  performance  thereof,  such  as 
a  failure  on  the  part  of  the  plaintiff  to  perform  a  condition 
precedent  to  his  right  to  recovery,  waiver  of  performance,  or 
impossibility  or  inability  to  perform.  All  such  matters  must 
be  the  subject  of  special  pleas.40 

If  the  declaration  is  upon  both  affirmative  and  negative  cov- 
enants, then  covenants  performed  should  be  pleaded  to  the 
former,  and  covenants  not  broken  to  the  latter.  The  usual  prac- 
tice is  to  offer  both  pleas  wherever  either  would  be  applicable.41 

37.  Chewning  v.  Wilkinson,  95  Va.  667,  29  S.  E.  680;  5  Rob.  Prac. 
668;  1  Barton's  Law  Practice  501-502;  Hogg's  Pleading  &  Forms  183- 
184,  310,  note  1;   5 'Encl.  PI.   &  Pr.  380-382;   2  Tucker's  Com.   127. 

38.  Poling    v.    Mattox,    41    W.    Va.    779,    24    S.    E.    999;    Archer    v. 
Archer,   8    Gratt.    539;    Supervisors   v.    Dunn,   27   Gratt.   620;    Elam  v. 
Commercial   Bank,   86   Va.   95,   9   S.    E.   498;   Chewning  v.   Wilkinson, 
95  Va.  667,  29  S.   E.  680. 

39.  Norfolk  &  C.  R.  Co.  v.  Suffolk  Lumber  Co.,  92  Va.  413,  23  S. 
E.  737;  Arnold  v.  Cole,  42  W.  Va.  663,  26  S.  E.  312;  4  Min.  Inst.  1202. 

40.  Chewning  v.   Wilkinson,   95   Va.   667,   29   S.    E.   680;    Scraggs   v. 
Hill,  37  W.  Va.    706,  17  S.  E.  185;  5  Encl.  PI.  &  Pr.  380-381,  notes; 
Fairfax  v.  Lewis,  2  Rand.  40.     See  also  original  article,  5  Va.  L.  Reg. 
586. 

41.  1   Barton's   Law   Practice   502;    Hogg's   Pleading   &   Forms   184; 
2   Tucker's   Com.   127. 

—8 


114  ACTION   OF   COVENANT  §    81 

It  would  seem  that  in  this  action  the  plaintiff  will  only  be  required 
to  prove  such  matters  as  are  put  in  issue 'by  the  defendant's 
special  plea  or  pleas,  and  that  where  the  defendant  puts  in 
the  plea  of  covenants  performed  and  covenants  not  broken  but 
does  not  plead  non  est  factum,  he  admits  the  execution  of  the 
instrument  sued  on,  and  the  warranty  or  covenant  therein  con- 
tained, and  no  proof  of  such  matters  will  be  required.42  Where 
issue  is  joined  on  the  defendant's  plea  of  performance  the  burden 
of  proof  is  on  him.43  It  is  stated  that  a  plea  of  covenants 
performed,  being  an  affirmative  plea,  should  conclude  with  a 
verification;**  and  this  would  seem  to  be  true  in  view  of  the 
rule  that  such  plea  must  show  the  time,  place  and  manner 
of  performance,  and  thus  introduce  new  matter.45 

§   81.   Plea  of  non  damnificatus. 

The  plea  of  non  damnificatus  is  in  the  nature  of  a  plea  of 
performance  and  is  applicable  only  to  an  action  on  a  bond 
with  condition,  or  covenant,  to  indemnify  and  save  harmless. 

These  or  equivalent  words  must  be  contained  in  the  bond, 
and  a  general  plea  is  allowed  simply  denying  that  the  plaintiff 
has  been  damnified,  and  he  can  make  the  issue  more  specific 
by  his  replication,  pointing  out  how,  when,  and  wherein  he 
was  damnified.  The  plea  is  not  applicable  (1)  where  the  bond 
sued  on  does  not  contain  the  words  indemnify  and  save  harm- 
less, or  one  of  them,  or  their  equivalent,  (2)  where  the  bond 
is  not  to  indemnify  and  save  harmless,  but  to  perform  some 
specific  act,  although  it  may  pro  tanto  amount  to  indemnity. 
A  plea  that  the  defendant  has  saved  harmless  the  plaintiff  is 

42.  Code,  §  3279;   Riddle   &  Core,  21   W.  Va.  530;   Arnold  v.   Cole, 
42  W.  Va.  663,  26   S.   E.   312;   Hogg's   Pleading  &   Forms   310,   note; 
5  Encl.  PI.  &  Pr.  379;  Austin  v.  Whitlock,  1   Munf.  487.     For  forms, 
of  these  pleas,  see  Hogg's  Pleading  &  Forms  309;   Gregory's   Forms 
350-351;    4    Min.    Inst.    1742-1744. 

43.  5   Rob.   Prac.   671. 

44.  5  Encl.  PI.  &  Pr.  381,  382.     And  see  forms  in  references  given 
in  note  1,  supra. 

45.  As   to   the   rule   when   new  matter  is    introduced,    see    Stephen's 
Pleading.   §   168. 


§    82  ASSUMPSIT  AS  A  SUBSTITUTE  FOR  COVENANT  115 

bad,    unless   it    specifically    points   out   how  he   has   saved   him 
harmless.46 

§   82.    Assumpsit  as  a  substitute  for  covenant. 

In  the  year  1897,  the  Legislature  of  Virginia  by  one  short 
statute  made  a  revolutionary  change  in  the  law,  which  very 
intimately  affects  the  action  of  covenant.  This  statute  pro- 
vides that  "In  any  case  in  which  an  action  of  covenant  will 
lie  there  may  be  maintained  an  action  of  assumpsit."47 

The  full  effect  of  this  statute  on  the  rules  of  pleading  sub- 
sequent to  the  declaration  has  not  as  yet  been  settled.  But 
it  is  certain,  as  said  by  Prof.  Graves,  that  "The  effect  of  this 
important  statute  is  to  bridge  the  gulf  which  at  common  law 
exists  between  covenant  and  assumpsit,  and  to  allow  assumpsit 
to  take  the  place  of  both  actions."  The  two  actions,  however, 
are  not  interchangeable.  "Covenant  does  not  'lie  when  as- 
sumpsit may  be  maintained,  but  assumpsit  lies  when  covenant 
may  be  maintained.  Covenant  remains  as  at  common  law.  It  is 
the  scope  of  assumpsit  that  is  enlarged."48 

It  has  been  held,  under  the  above  statute,  that  in  an  action 
of  assumpsit,  a  special  count  on  a  sealed  instrument  may  be 
united  with  the  common  counts  in  assumpsit;49  and  that  a 
special  count  in  assumpsit  can  be  joined  with  a  special  count 
on  a  contract  under  seal,  as  both  are  counts  in  assumpsit.50 

46.  4   Min.   Inst.   1203,   1204,   1219,   1220;   Stephen's   Pleading,   §   224; 
5  Encl.  PI.  &  Pr.  383;  Archer  v.  Archer,  8  Gratt.  539;  Supervisors  v. 
Dunn,  27  Gratt.  608;  Poling  v.  Mattox,  41  W.  Va.  779,  24  S.   E.  999. 
Where   the  defendant  has    already    pleaded    "conditions   performed," 
the  court  may  refuse  to  permit  him  to  plead  non  damnificatus  as  the 
two  pleas   are   equivalent.      See   cases    cited   and   also    Elam   v.   Com- 
mercial Bank,  86  Va.  95,  9  S.  E.  498.     This  plea  is  more  often  used 
in   debt  on   a   bond  with   condition   than   in   any   other   case,   because 
debt  is  more  frequently  brought  on   such  bonds  than  covenant.     But 
covenant  may  be  brought  on  such  bonds   (Ward  v.  Johnston,  1  Munf. 
45);  and  also  there  may  be  a  covenant  to  indemnify  and  save  harm- 
less, in  which  case  the  plea  would  be  proper.     See  5  Encl.  PI.  &  Pr. 
383,   note   2. 

47.  Code,   §    3246a. 

48.  Graves'    Notes   on   Pleading    (new)     21. 

49.  Grubb  v.  Burford,  98  Va.  553,  37  S.  E.  4. 

50.  American  Bonding  Co.  v.  Milstead,  102  Va.  683,  47  S.  E.  853. 


116  ACTION   OF   COVENANT  §    82 

The  chief  embarrassment  to  which  this  statute  has  given 
rise  is,  not  as  to  the  form  of  the  declaration,  but  as  to  what 
effect  the  statute  has  on  the  form  in  which  the  defenses  to 
sealed  instruments  must  be  presented.  Are  sealed  instruments 
put  on  the  same  footing  with  simple  contracts  so  that  failure 
of  consideration,  fraud  in  the  procurement,  want  of  considera- 
tion, breach  of  warranty,  etc.,  may  be  put  in  evidence  under 
non  assumpsit,  or  must  such  defenses  to  a  specialty  still  be 
pleaded  specially  in  an  action  of  assumpsit  on  the  instrument? 

It  seems  clear  that  the  declaration  must  show  whether  the 
instrument  sued  on  is  under  seal  or  not,  and  one  very  potent 
reason  for  this  is  that  the  defendant  may  know  whether  to 
plead  the  statute  of  limitations,  or  what  limitation  of  the  stat- 
ute is  applicable.51  But  it  is  quite  doubtful  if,  even  upon  a 
liberal  interpretation  of  the  statute,  it  would  be  allowable,  under 
a  plea  of  non  assumpsit  to  an  action  on  a  specialty,  to  make 
all  defenses  permissible  under  such  plea  in  an  action  on  a 
simple  contract.  Under  such  a  theory  a  sealed  instrument 
would  be  stripped  of  its  every  attribute,  save  only  its  longer 
life  with  respect  to  the  act  of  limitations,  and,  contrary  to 
immemorial  practice,  its  consideration  could  be  inquired  into, 
recoupment  could  be  claimed,  and  fraud  and  breach  of  war- 
ranty could  be  marshaled  to  its  defeat  under  the  mere  unsworn 
statement  of  the  defendant  of  "non  assumpsit." 

It  is  not  meant  to-  intimate  that  the  Legislature  could  not 
with  propriety  make  this  the  rule,  nor  to  impugn  the  policy 
of  such  a  rule.  In  many  ways  it  might  be  desirable.  But  it 
is  not  believed  that  the  Legislature  has  done  this  in  the  statute 
under  consideration,  whatever  its  intention  may  have  been. 
The  statute  must  be  strained  beyond  legitimate  interpretation, 
based  on  a  presumed  but  not  expressed  intention,  before 
such  a  result  is  attained.  The  legislature  dealt  with  the 
form  of  the  action  only.  It  left  untouched  the  nature 
of  sealed  instruments,  and  the  defendant's  pleading  to 
the  enlarged  action.  When  the  statute  allowed  case  to  be 
brought  wherever  trespass  would  lie,  no  such  difficulty  was  en- 
countered, as  the  two  actions,  were  closely  assimilated,  and 

51.  3  Va.  Law  Reg.  829. 


§    82  ASSUMPSIT  AS  A  SUBSTITUTE  FOR  COVENANT  117 

frequently  the  plaintiff  had  his  election  which  he  would  bring. 
The  general  issue  was  the  same  in  each.  But  here  the  situa- 
tion is  entirely  different.  The  two  forms  of  action  were  never 
interchangeable,  and  the  plaintiff  never  had  an  election  between 
them.  It  is  believed  that  in  assumpsit  as  in  debt  there  should 
be,  since  this  statute,  two  general  issues,  non  assumpsit  in  ac- 
tions on  simple  contract,  and  non  est  factum  on  specialties ; 
or,  at  least,  under  the  plea  of  non  assumpsit  no  proof  should 
be  allowed  of  any  matter  which  would  contradict  the  nature  of 
the  instrument ;  and,  that,  in  assumpsit  as  in  debt  such  de- 
fenses to  a  specialty  as  failure  or  want  of  consideration,  fraud 
in  the  procurement,  misrepresentation,  or  breach  of  warranty 
should  be  made  by  a  sworn  plea  under  §  3299  of  the  Code. 
If  the  general  issue  of  nil  debet  is  inapplicable  (as  it  is)  to  an 
action  of  debt  on  a  sealed  instrument,  for  exactly  the  same 
reason  the  general  issue  of  non  assumpsit  should  be  held  in- 
applicable to  assumpsit  on  a  sealed  instrument.52 

52.  See  10  Va.  Law  Reg.  766.  It  should  be  noted,  however,  that 
in  the  case  of  Grubb  v.  Burford,  supra,  the  only  plea  filed  was  non 
assumpsit,  but  the  facts  proved  in  no  wise  contradicted  the  nature 
of  the  instrument  or  impugned  its  consideration;  and  in  American 
Bonding,  etc.,  Co.  v.  Milstead,  supra,  which  was  assumpsit  on  a  guar- 
anty company's  bond  non  assumpsit  was  pleaded,  and,  at  page  690  of 
102  Va.,  Judge  Cardwell  said:  "The  Court  is  further  of  opinion  that 
the  court  below  did  not  err  in  refusing  to  allow  plaintiff  in  error 
to  file  the  three  special  pleas  offe.red  at  the  February  term  of  court, 
1903,  when  the  cause  was  tried.  Plaintiff  in  error  had  pleaded  at 
the  prior,  term  the  general  issue,  and  not  only  were  the  matters 
set  up  in  the  special  pleas  such  as  could  have  been  proved  under 
the  general  issue,  but  the  privilege  was  expressly  reserved  to  it,  in 
the  order  rejecting  the  pleas,  to  offer  any  evidence  under  the  gen- 
eral issue  that  was  proper  to  be  offered  under  the  pleas  tendered, 
and  there  is  no  suggestion  anywhere  in  the  record  that  plaintiff  in 
error  was  prevented  from  introducing  any  evidence  which  it  de- 
sired in  support  of  matters  stated  in  the  pleas,  or  prejudiced  by 
their  rejection."  It  does  not  appear  what  the  defenses  offered  by 
the  special  pleas  were,  and  in  view  of  the  reservation  made,  it  would 
seem  that  what  was  said  as  to  what  was  provable  under  the  general  is- 
sue in  that  case  was  not  necessary  to  its  decision,  even  if  the  court 
meant  to  pass  upon  the  question  now  under  consideration. 


CHAPTER  X. 

ASSUMPSIT. 

§  83.  History  of  the  action  and  when  it  lies. 
§  84.  When  assumpsit  does  not  lie. 
§  85.  Waiving  tort   and   suing  in  assumpsit. 
§  86.  Of  general  and  special  assumpsit. 

Difference   between  general   and   special   assumpsit. 

When  general   assumpsit  will  not  lie. 

When-  general    assumpsit  will   lie. 
§  87.  When  necessary  to  declare  specially. 
§  88.  Nature  and  constitution  of  special  counts. 
§  89.  Account  to  be  filed  with  the  declaration. 
§  90.  Avoiding  writ  of  inquiry. 

§  91.  Avoiding  writ  of  inquiry  and  putting  defendant  to  sworn  plea. 
§  92.  Misjoinder  of  tort  and  assumpsit. 
§  93.  Nonassumpsit. 
§  94.  Special   pleas. 

§   83.    History  of  the  action  and  when  it  lies. 

As  said  by  Chitty,  "A  minute  inquiry  into  the  history  of  this 
action  would  at  this  time  be  matter  of  ciiriosity  rather  than 
of  practical  utility."1  Suffice  it  to  say  that,  originally,  the  action 
of  assumpsit  was  a  tort  action,  pure  and  simple,  to  recover 
damages  for  a  wrong  done.  It  was  given  first  for  malfeasance,  the 
doing  of  a  thing  a  man  had  no  right  to  do,  then  it  was  ex- 
tended to  acts  of  misfeasance,  doing  what  a  man  had  a  right 
to  do,  but  doing  it  in  an  improper  manner,  and  was  finally 
extended  to  non-feasance,  the  -failure  to  do  what  one  ought  to 
do,  and  hence,  the  breach  of  an  executory  contract.2  Its  nature 
is  well  suggested  by  its  name,  assumpsit,  he  has  agreed  or 
promised,  which  is  descriptive  of  the  defendant's  undertaking.3 
It  is  the  broadest  in  its  scope  and  the  most  used  of  all  the 
ex  contractu  actions,  and  is  employed  to  recover  damages,  by 
way  of  amends,  for  the  breach  or  nonperformance  of  a  con- 

1.  1   Chitty  99. 

2.  2  Encl.  PI.  &  Pr.  988;  Pollack  on  Contracts  127-128;  Robinson  v. 
Welty,  40  W.  Va.  385,  22  S.  E.  73. 

3.  1   Chitty   98. 


§    83  HISTORY  OF  THE  ACTION  AND  WHEN  IT  LIES  119 

tract  not  under  seal  nor  of  record.  The  contract  for  the 
breach  of  which  it  lies  may  be  implied  as  well  as  express,  and 
it  lies  as  well  on  a  promise  to  do  a  collateral  thing,  as  on  one 
to  pay  money.4  Assumpsit  now  lies  in  Virginia  on  sealed  as 
well  as  unsealed  contracts,  since  the  enactment  of  the  statute 
which  provides  that  "In  any  case  in  which  an  action  of  cov- 
enant will  lie  there  may  be  maintained  an  action  of  assumpsit."5 
Prior  to  this  statute,  it  did  not  lie  on  contracts  of  record, 
such  as  domestic  judgments  or  judgments  of  the  courts  of 
sister  States,  because  these  are  of  higher '  dignity  than  simple 
contracts,  and  the  generality  of  the  pleadings  in  assumpsit  would 
permit  of  defences  which  are,  in  such  cases,  inadmissible.6 
Whether  the  statute  has  made  any  change  in  this  respect  has 
not  been  determined.  The  action  of  assumpsit  as  it  now  exists 
in  Virginia  is  broader  than  covenant,  for  it  lies  on  both  sealed 
and  unsealed  contracts ;  it  is  more  comprehensive  than  debt  for 
it  may  be  employed  to  recover  uncertain  sums  and  unliquidated 
demands  as  well  as  sums  certain  of  money;  and  its  scope  is 
more  extended  than  the  statutory  remedy  by  motion,  as  the 
latter  may  only  be  employed  to  recover  money  due  on  con- 
tract, and  not  damages  flowing  from  the  breach  of  contract. 
The  attempt  to  enumerate,  even  partially,  the  instances  in  which 
this  action  is  the  appropriate  form  of  remedy  would  be  of 
no  practical  value.  It  is  sufficient  to  say  that  the  scope  of 
its  relief  is  coextensive  with  the  realm  of  contract,  and  its 
applicability  is  only  limited  by  the  prerequisite  that  damages 
shall  have  resulted  from  the  breach  of  contractual  relations. 
It  is  pre-eminently  an  equitable  action,  that  is  to  say,  it  is 
flexible,  untechnical,  and  lends  itself  as  a  remedy  under  the 

4.  4    Min.    Inst.    428;    Stephens'    Pleading    133,    134;    2    Encl.    PI.    & 
Pr.   988.  As   to   the   implied   contract   on   the   part   of   a   grantee   in   a 
deed  poll,   arising   from   his   acceptance   of   such    deed,    to   perform   a 
promise   or   undertaking   imposed   upon   him   in    such    deed,   see   ante, 
§  74,  where  it  is  shown  that  such  contract  is  enforceable  in  assumpsit. 

5.  Sec.   3246a   Code   of  Virginia.     The   scope   of   the   above   statute, 
the  changes  made  by  it  in   the  law,   and  the  uncertainties   to  which 
it  has  given  rise  are  fully  treated  in  the  discussion  of  the  action  of 
Covenant,   §    82,    and    the    observations    there    made    need    not    be    re- 
peated  here. 

6.  See  ante,  §  71. 


120  ASSUMPSIT  §    84 

most  diverse  circumstances.  As  said  in  a  case  wherein  it 
was  held  that  assumpsit  lay  for  money  paid  under  a  mistake, 
or  upon  a  consideration  which  happened  to  fail :  "The  action 
of  assumpsit  is  essentially  an  equitable  action.  It  always  lies 
to  recover  money  which  the  defendant  ex  <zquo  et  bono  ought 
not  to  retain  in  his  hands.  It  is  a  general  rule  that  where 
one  man  has  in  his  hands  money,  which,  according  to  the 
rules  of  equity  and  good  conscience,  belongs  to  and  ought  to 
be  paid  to  another,  an  action  will  lie  for  such  money  as  money 
received  by  defendant  to  plaintiff's  use."7  Or,  as  differently 
phrased  in  another  case:  "The  action  for  money  had  and  re- 
ceived may  generally  be  maintained  where  the  money  of  one 
man  has  without  consideration  got  into  the  pockets  of  another; 
or,  as  it  is  sometimes  expressed,  a  man  cannot  have  something 
for  nothing;  a  man  shall  not  be  allowed  to  enrich  himself 
unjustly  at  the  expense  of  another."8  To  name,  by  way  of 
illustration,  but  a  very  few  instances  where  the  action  is  ap- 
propriate, it  has  been  held  that  it  lies  to  recover  compensation 
for  services  and  work  of  different  descriptions ;  for  the  sale, 
use,  or  hire  of  property,  personal  or  real ;  upon  bills  of  ex- 
change, checks,  promissory  notes,  or  policies  of  insurance ;  upon 
awards ;  for  a  breach  of  promise  to  marry ;  for  not  delivering 
goods  bought ;  for  not  accepting  goods  sold ;  and  upon  war- 
ranties express  or  implied.9 

§   84.     When  assumpsit  does  not  lie. 

Assumpsit  does  not  lie  in  any  case  except  where  damages 
are  sought  for  the  breach  of  a  contract  express  or  implied.  At 
common  law  (and  in  Virginia  before  the  enactment  of  §  3246a  of 
the  Code)  it  did  not  lie  on  sealed  instruments.  It  does  not 
lie  nor  does  any  other  form  of  action  lie  for  money  paid  for  an 

7.  Garber   v.    Armentrout,     32     Gratt.     235.       See     also    Jackson    v. 
Hough,  38  W.  Va.  390,  18  S.  E.  Rep.  575. 

8.  Robinson  v.  Welty,  40  W.  Va.  385,  22  S.  E.  73.     See  also  Thomp- 
son v.  Thompson,  5   W.  Va.   190;   Mankin  v.  Jones    (W.  Va.),   69   S. 
E.  981. 

9.  1  Chitty  101-102.     As    to    assumpsit    on    negotiable    instruments 
against  all  or  any  intermediate  number  of  those  liable,   see  Code,  § 
2853. 


§    85  WAIVING  TORT  AND   SUING  IN   ASSUMPSIT  121 

illegal  purpose,  such  as  compounding  a  crime;10  nor  does  it 
lie,  as  we  have  seen,  independently  of  statute,  to  recover  on 
judgments  of  a  court  of  this  State  or  of  a  sister  State.11 

§  85.    Waiving  tort  and  suing  in  assumpsit. 

We  have  seen  that  assumpsit  is  exclusively  an  action  ex 
contractu,  and  that  it  lies  only  for  the  breach  of  a  contract. 
What  might  at  first  glance  appear  an  anomaly,  the  founding 
of  an  action  of  assumpsit  on  what  was  originally  a  tort,  is 
explained  by  the  conclusive  legal  presumption  of  an  implied 
contract  in  such  cases.  The  rule  is  thus  stated :  "Wherever  a 
person  commits  a  wrong  against  the  estate  of  another,  with 
the  intention  of  benefiting  his  own  estate,  the  law  will,  at 
the  election  of  the  party  injured,  imply  a  contract  on  the 
part  of  the  wrongdoer  to  pay  the  party  injured  the  full  value 
of  all  benefits  resulting  to  such  wrongdoer ;  and,  in  such  case, 
the  injured  party  may  elect  to  sue  upon  the  implied  contract 
for  the  value  of  benefits  received  by  the  wrongdoer."12  The 
legal  presumption  of  the  implied  contract  being  conclusive,  the 
defendant  will  not  be  permitted  to  set  up  his  tort  in  order 
to  defeat  the  implied  promise.13 

Thus,  the  tort  involved  in  a  conversion  and  appropriation  of 
one's  property  by  another  to  his  own  use  may  be  waived,  and 
the  injured  party  may  bring  indebitatus  assumpsit  for  the  value 
of  the  property  on  the  wrongdoer's  implied  contract  to  pay 
for  the  property  converted  and  appropriated  by  him.14  Where 
there  has  been  a  tortious  taking  of  goods,  the  owner  may 
bring  trespass  for  the  taking,  or  waiving  the  trespass,  he  may 
bring  trover  for  the  conversion,  or  if  the  goods  have  been 
sold  and  money  received,  or  the  goods  otherwise  appropriated 
or  consumed,  he  may  waive  tort  altogether  and  bring  assumpsit 

10.  1  Barton's  Law  Practice  128. 

11.  See  ante,  §  71'. 

12.  1  Jaggard  on  Torts  296,  297. 

13.  Cooley  on  Torts   (Students'  Ed.)   130. 

14.  Tidewater  Quarry  Co.  r.  Scott,  105  Va.  160,  52  S.  E.  835.     See 
also  King  v.  McDaniel,  4  Call  451.     And  in  such  case,  the  common 
count   for  goods   bargained   and   sold   is    sufficient.     Walker  v.   N.    & 
W.  Ry.  Co.,  67  W.  Va.  273,  67  S.   E.  722. 


122  ASSUMPSIT  §    85 

for  their  value.15  In  Sangster  v.  Com.,  Judge  Moncure  says: 
"When  A  wrongfully  takes  the  property  of  B  and  sells  it, 
B  may  bring  trespass,  trover,  detinue,  or  assumpsit  for  money 
had  and  received,  against  A  at  his  election.  *  *  *  By 
bringing  assumpsit  he  waives  all  claim  for  the  wrongful  detention 
and  conversion,  affirms  the  sale,  and  makes  the  proceeds  of  it 
money  had  and  received  to  his  use."16  But  the  remedy  is 
not  restricted  to  the  instances  above  mentioned.  "Since  one 
has  the  right  to  recover  the  proceeds  of  property  wrongfully 
converted  and  sold,  it  necessarily  follows  that,  where  the  plain- 
tiff's money  has  been  tortiously  obtained  by  the  defendant,  the 
tort  may  be  waived,  and  an  action  for  money  had  and  received 
be  brought.  *  *  *  For  where  the  defendant  has  obtained 
the  plaintiff's  money  from  him  by  fraud  and  deceit,  the  law 
implies  a  promise  by  the  wrongdoer  to  restore  it  because  ex 
ccquo  et  bono  the  defendant  ought  to  refund  the  money,  and  to 
enforce  such  obligation  the  action  of  assumpsit  lies,"  and  the 
common  counts  are  sufficient.17  Where  a  trespasser  cuts  and 
sells,  or  converts  to  his  own  use,  trees  growing  on  land,  the 
owner  of  the  land  may  waive  the  tort,  and,  instead  of  bringing 
an  action  for  the  tort,  sue  in  assumpsit  and  recover  on  the 
common  counts  for  money  had  and  received,  or  on  a  quantum 
vadebant  for  their  value;  but  he  cannot  maintain  assumpsit 
where  the  title  to  the  land  is  in  contest  between  the  parties, 
because  title  to  real  estate  cannot  be  tried  in  an  action  of  as- 
sumpsit.18 

As  appears  by  the  general  statement  of  the  rule  given  earlier 
in  this  section,  the  fiction  of  an  implied  promise  proceeds  on 
the  idea  that  the  defendant's  estate  has  been  enriched  and  the 
plaintiff's  diminished  by  the  wrongful  act  of  the  defendant.19 

15.  Maloney  v.   Barr,  27  W.  Va.  381;   McDonald  v.   Peacemaker,   5 
W.  Va.  439. 

16.  17  Gratt.  132,  quoted  with  approval  in  Booker  v.  Donohoe,  95 
Va.  359,  28  S.  E.  584. 

17.  Robinson  v.  Welty,  40  W.  Va.  385,  22  S.  E.  73. 

18.  Parks  v.  Morris,  63  W.  Va.  51,  59  S.   E.  753;   Stephen's  Plead- 
ing  89,   90. 

19.  See  also   15    Am.    &    Eng.    End.   of   Law    1115;    Clark    on    Con- 
tracts  (2nd  Ed.)   767-768. 


§    85  WAIVING  TORT  AND  SUING  IN  ASSUMPSIT  123 

Hence  the  implied  assumpsit.  It  follows  that  where  the  tort 
in  question  is  a  mere  naked  trespass,  such  as  an  assault  and 
battery,  or  an  injury  (unknown  to  the  owner)  done  by  tres- 
passing cattle,  there  is  no  ground  for  any  implication  of  a 
contract.  Such  acts  would  be  simple  wrongs,  nothing  more, 
and  the  plaintiff's  only  remedy  would  be  in  a  tort  action.20 
The  fact  that  the  tort  may  also  be  a  crime,  e.  g.,  a  theft,  does 
not  affect  the  plaintiff's  right  to  bring  assumpsit.21  But  in 
actions  based  on  the  conversion  of  property  which  has  been 
sold  by  the  defendant,  it  is  said  that  the  plaintiff  in  order 
to  maintain  assumpsit  must  have  such  an  interest  in  the  prop- 
erty as  entitles  him  to  the  proceeds  of  the  sale.22 

Where  the  property  converted  has  not  been  sold,  but  has  been 
used  or  consumed  by  the  tortfeasor,  the  authorities  are  in  con- 
flict as  to  the  right  of  the  owner  of  the  property  to  waive 
the  tort  and  bring  assumpsit.  The  cases  denying  the  right  hold 
that  there  is  no  legal  presumption  of  an  implied  assumpsit 
raised  in  such  cases,  and  that  the  plaintiff's  remedy  is  trover.23 
But  the  rule  supported  by  the  great  weight  of  authority,  and 
certainly  by  reason,  is  that  in  such  cases  assumpsit  will  lie; 
not  for  money  had  and  received,  because  the  defendant  has 
received  no  money,  but  for  the  value  of  goods  sold  and  de- 
livered.24 The  Virginia  and  West  Virginia  cases  accord  with 
this  majority  rule.25  Where  assumpsit  is  brought  there  is  no 
recovery  of  damages  on  account  of  the  tort,  but  the  recovery 
is  limited  to  the  amount  received  from  the  sale,  or  to  the 

20.  15  Am.  &  Eng.  Encl.  of  Law  1112;  Cooley  on  Torts   (Students' 
Ed.)      131-132;     Clark    on     Contracts      (2nd    Ed.)    767-768;    Stephen's 
Pleading,  §  47. 

21.  Clark   on   Contracts    (2nd    Ed.)    768;    15   Am.    &    Eng.    Encl.    of 
Law  1114,  note;  Stephen's  Pleading,  §  47. 

22.  15  Am.   &   Eng.   Encl.  of  Law  1114. 

23.  15  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)   1116;  Clark  on  Contracts 
(2nd  Ed.)  780;  note  to  Woodruff  v.  Zaban  (Ga.),  17  Anno.  Cases  975. 

24.  Note  to  Woodruff  v.  Zaban   (Ga.),  17  Anno.  Cases  975   (where 
the  Virginia  and   West  Virginia   courts   are  given  as   supporting  the 
majority  rule);   Stephen's   Pleading  88,   89. 

25.  Tidewater  Quarry  Co.  v.  Scott,  105  Va.  160,  52  S.  E.  835;   Ma- 
loney  v.  Barr,  27  W.  Va.  381;  Walker  v.  N.  &  W.  R.  Co.,  67  W.  Va. 
273,  67  S.  E.  722;   McDonald  v.  Peacemaker,  5  W.  Va.  439. 


124  ASSUMPSIT  §    86 

actual  value  of  the  goods  used  or  consumed.20  The  plaintiff's 
election  to  waive  the  tort,  once  made,  is  final ;  he  is  bound  by 
it,  and  if  he  brings  assumpsit  he  will  not  afterwards  be  per- 
mitted to  sue  in  tort.27 

§   86.    Of  general  and  special  assumpsit. 

The  Common  Counts — Why  So  Called. — As  said  by  Mr. 
Tucker:  "The  declaration  in  assumpsit  is  either  upon  an  ex- 
press or  an  implied  contract.  And  in  the  same  declaration  may 
be  joined  several  counts,  some  of  which  may  be  founded  upon 
a  special  or  express  agreement,  and  others  merely  upon  the 
agreement  which  is  implied  by  law  from  the  transaction  be- 
tween the  parties.  That  upon  the  express  agreement  is  called 
the  special  count,  and  the  others  are  called  the  general  counts."28 
The  common  counts  are  so  called  because  they  are  the 
counts  applicable  to  the  causes  of  action  most  com- 
monly arising,  and,  consequently,  the  ones  most  com- 
monly used.  The  common  counts  are  also  spoken  of  as  general 
assumpsit  for  the  same  reason.29  They  are  short  general  forms, 
very  comprehensive  in  their  scope,  and  founded  upon  an  al- 
leged indebtedness.30  The  whole  discussion  of  general  and  special 
assumpsit  simply  resolves  itself  into  the  inquiry  whether  in 
the  particular  instance  the  general  formula:  known  as  common 
counts  may  be  used  as  the  declaration,  or  the  case  is  such  that 
they  are  inapplicable,  and  the  plaintiff  will  have  to  distinctly 
state  his  cause  of  action  according  to  the  general  rules  of 
pleading,  i.  e.,  declare  specially.  The  common  counts  are 
always  substitutional  and  never  exclusive  in  their  use,  and  in 
every  case  where  assumpsit  is  brought  it  is  perfectly  proper 
to  declare  specially;  the  common  counts,  where  applicable,  are 
adopted  for  convenience  and  brevity,  or  as  a  sort  of  tabula  in 
naufragio  to  support  a  recovery  in  the  event  of  the  special 
count  proving  defective  or  inapplicable  to  the  case  which  de- 

26.  15  Am.  &  Eng.  Encl.  of  Law  1115;  Note  in  17  Anno.  Cases,  at 
page  977. 

27.  15  Am.  &  Eng.  Encl.  of  Law  1112;  Stephen's  Pleading,  §  49. 

28.  2  Tucker's  Com.  143;  2  Encl.  PI.  &  Pr.  990. 

29.  Stephen's  Pleading,  §  82,  note;  2   Encl.  PI.  &  Pr.  1002. 

30.  2   Encl.   PI.   &   Pr.   1002;   4  Min.   Inst.   694. 


§    86  OF    GENERAL    AND    SPECIAL    ASSUMPSIT  125 

velopes  on  the  trial.  A  form  of  declaration  containing  them  is 
given  in  the  margin.31 

31.  CIRCUIT   COURT    FOR  COUNTY,   TO-WIT:— • 

-  RULES,  19—. 

C.  C.  complains  of  D.  D.  of  a  plea  of  trespass  on  the  case  in  as- 

sumpsit;  for  this,  to-wit:  that  heretofore,  to-wit,  on  the  day  of 

,  in  the  year  of  our  Lord  nineteen  hundred  and  , 

the  said  defendant  was  indebted  to  the   said  plaintiff  in   the   sum  of 

—  dollars,  for  goods,  wares  and  merchandise  before  that  time 

by   the   said   plaintiff  sold   and   delivered   to   the    said   defendant,   and 

at  his   special  instance  and  request;   and  also  in  the  further  sum  of 

—   dollars    for    the   work    and   labor,    care    and    diligence    of   the 

said  plaintiff  before  that  time  done,  performed  and  bestowed  in  and 

about  the   business   of  the   said   defendant,   and   for   him,   and   at   his 

special  instance  and  request;  and  also  in  the  sum  of  dollars, 

for  money  before  that  time  lent  and  advanced  to  and  paid,  laid  out, 
and  expended  for  the  said  defendant,  and  at  his  like  special-  in- 
stance and  request;  and  also  in  the  further  sum  of  dol- 
lars, for  other  money  by  the  said  defendant  before  that  time  had 
and  received  to  and  for  the  use  of  the  said  plaintiff;  and  being  so 
indebted,  the  said  defendant,  in  consideration  thereof,  afterwards, 
to-wit,  on  the  day  and  year  aforesaid,  undertook  and  faithfully 
promised  the  said  plaintiff  to  pay  him  the  said  several  -sums  of 
money  in  this  count  mentioned,  when  the  said  defendant  should  be 
thereunto  afterwards  requested. 

And  for  this  also,  that  heretofore,  to-wit,  on  the  day  and  year 
last  aforesaid,  the  said  defendant  accounted  with  the  said  plaintiff 
of  and  concerning  divers  other  sums  of  money  before  that  time  due 
and  owing  to  the  said  plaintiff,  and  then  in  arrear  and  unpaid;  and 
upon  such  accounting,  the  said  defendant  was  found  in  arrear,  and 

indebted   to   the   said   plaintiff  in   the   further   sum   of  dollars, 

and  being  so  found  in  arrear  and  indebted,  he,  the  said  defendant, 
in  consideration  thereof,  undertook  and  then  faithfully  promised  the 
said  plaintiff  to  pay  to  him  the  said  sum  of  money  in  this  count  last 
mentioned,  when  he,  the  said  defendant,  should  be  thereunto  after- 
wards requested. 

Nevertheless  the  said  defendant,  not  regarding  his  said  several 
promises  and  undertakings,  hath  not  as  yet  paid  to  the  said  plain- 
tiff the  said  several  sums  of  money,  or  any  or  either  of  them,  or 
any  part  thereof,  although  often  requested  so  to  do;  but  to  pay  the 
same  hath  hitherto  wholly  neglected  and  refused,  and  still  doth  neg- 
lect and  refuse,  to  the  damage  of  the  said  plaintiff  of  dol- 
lars. And  therefore  he  brings  his  suite. 

H.  C.  C.,  p.  q. 

The  above  form  is  taken   from  4   Min.   Inst.   1671,   1672. 


126  ASSUMPSIT  §    86 

Prof.  Graves  has  very  tersely,  and  at  the  same  time  completely, 
stated  the  general  form  and  nature  of  the  common  counts  in 
assumpsit  as  follows :  "By  the  common-law  system  of  pleading, 
there  are  in  assumpsit  four  kinds  of  general  counts,  or  common 
counts,  as  they  are  usually  called,  viz:  (1)  the  indebitatus  as- 
sumpsit count;  (2)  the  quantum  meruit  count;  (3)  the  quantum 
valebant  count;  and  (4)  the  account  stated.  The  indebitatns 
assumpsit  count  alleges  that  the  defendant  was,  at  a  certain 
time  and  place,  indebted  to  the  plaintiff  in  a  named  sum  of 
money  for  goods  sold,  work  done,  money  lent,  money  paid  at 
the  defendant's  request,  or  for  money  had  and  received  by  the 
defendant  for  the  plaintiff's  use;  and  that  being  so  indebted, 
the  defendant,  in  consideration  thereof,  at  a  certain  time  and 
place,  promised  the  plaintiff  to  pay  him  the  said  sum  of  money 
on  request.  The  quantum  meruit  count,  instead  of  stating  that 
the -defendant  was  indebted  to  the  plaintiff  in  a  certain  sum  of 
money  for  work,  etc.,  as  in  the  indebitatus  count,  states  that 
in  consideration  that  the  plaintiff  had  done  work  at  the  request 
of  the  defendant,  he,  the  defendant,  promised  the  plaintiff  to 
pay  him  so  much  money  as  he  reasonably  deserved  to  have 
(quantum  meruit);  and  the  count  then  avers  that  the  plaintiff 
deserved  to  have  a  named  sum,  whereof  the  defendant  had 
notice.  '  The  quantum  valebant  count  is  applicable  to  a  sale 
of  goods,  and  alleges  that  the  defendant  promised  to  pay  the 
plaintiff  for  certain  goods  sold  and  delivered  by  him  to  the 
defendant  so  much  as  the  goods  were  reasonably  worth  (quantum 
valebant),  and  concludes  with  an  averment  that  they  were  rea- 
sonably worth  a  named  sum,  and  that  the  defendant  had  notice 
thereof.  The  account  stated  alleges  that  the  defendant  at  a 
certain  time  and  place  accounted  with  the  plaintiff  (insinnil 
computasscnt)  of  and  concerning  divers  sums  of  money  be- 
fore then  due  from  the  defendant  to  the  plaintiff,  and  then  in 
arrear  and  unpaid,  and  that  upon  such  accounting  the  defend- 
ant was  found  to  be  in  arrear  to  the  plaintiff  in  a  named  sum, 
and  that  being  so  found  in  arrear  and  indebted,  the  defendant, 
in  consideration  thereof,  undertook  and  faithfully  promised  the 
plaintiff  to  pay  him  the  same  on  request."32  The  common 

32.  Graves'  Notes  on  Pleading  (old)  108-109.  See  also  1  Chitty 
339-342;  1  Barton's  Law  Practice  335-336;  4  Min.  Inst.  698-701;  2 
Tucker's  Com.  146-147. 


§    86  OF    GENERAL    AND    SPECIAL    ASSUMPSIT  127 

breach  alleged  to  all  these  counts  may  be  noted  in  the  form 
of  declaration  hereinbefore  given. 

Of  the  counts  of  quantum  valebant  for  goods  sold,  and  quantum 
meruit  for  work  and  labor,  Prof.  Graves  says:  "In  modern 
practice  it  is  not  necessary  or  usual  to  insert  them.  Their 
employment  originated  in  the  idea  that  where  the  indebitatus 
assumpsit  alone  was  employed  no  recovery  could  be  ha'd  unless 
the  plaintiff  proved  the  exact  sum  in  which  he  alleged  the 
defendant  to  be  indebted  to  him.  *  *  *  But*  it  is  now 
settled  that  under  the  indebitatus  count,  or  counts,  for  goods 
sold,  work  done,  etc.,  the  plaintiff  may  recover  what  may  be 
due  him,  although  no  specific  price  or  sum  was  agreed  upon; 
while,  on  the  other  hand,  it  is  held  that  under  the  quantum 
valebant  and  quantum  meruit  counts  no  recovery  can  be  had 
if  the  evidence  shows  that  the  goods  were  sold  or  the  work 
done  for  a  certain  price  or  compensation.  Since,  therefore,  the 
indebitatus  counts  are  necessary  to  meet  the  contingency  of  a; 
certain  sum  due  by  express  contract,  and  as  the  quantum  meruit 
and  quantum  valebant  counts  are  not  needed  to  accompany  the 
indebitatus  counts  even  when  no  sum  certain  has  been  agreed 
on,  the  result  has  been  that  the  quantum  meruit  and  quantum 
valebant  counts  are  now  rarely  used."33 

In  practically  every  declaration  in  assumpsit  where  the  cause 
of  action  is  declared  on  specially,  it  is  advisable  to  include  the 
common  counts.  The  reason  is  that  if  the  plaintiff  fail  in  his 
proof  of  the  special  and  express  contract  declared  on,  he  may, 
in  many  instances,  nevertheless  recover  under  the  common 
counts  on  an  implied  contract.34  An  illustration  is  afforded 
by  the  case  of  Davisson  v.  Ford,35  in  which,  in  assumpsit,  on 
a  special  count,  the  declaration  alleged  that  for  the  dead  car- 
casses of  certain  cattle  sold  to  defendant  by  plaintiff  defendant 
was  to  pay  plaintiff  the  value  of  the  cattle  before  they  had  been 
killed.  The  evidence  showed  that  for  the  carcasses  defendant 
promised  to  pay  $30  a  head.  It  was  held  that  this  was  a 

33.  Graves'    Notes   on   Pleading    (old)    110.      See   also   4   Min.    Inst. 
700;   1   Chitty  341,   342. 

34.  See  4  Min.  Inst.  695,  for  illustrations  of  cases  where  this  might 
occur. 

35.  23   W.   Va.   61T. 


128  ASSUMPSIT  §    86 

fatal  variance;  but  that  if  there  had  been  a  common  indebitatus 
assumpsit  count  in  the  declaration,  plaintiff  could  have  recovered 
on  such  proof.  The  rule  is  thus  stated :  "Where  a  party  declares 
on  a  special  contract,  seeking  to  recover  thereon,  but  fails  in 
his  right  so  to  do  altogether,  he  may  recover  on  a  general 
count,  if  the  case  be  such  that,  supposing  there  had  been  no 
special  contract,  he  might  still  have  recovered  for  money  paid, 
or  for  work  and  labor  done,  or  for  use  and  occupation,  or 
for  money  "had  and  received."36 

The  recitals  in  the  common  counts  are  sometimes  slightly 
varied  from  those  given  in  the  form  in  the  margin,  supra,  in 
order  to  meet  cases  which  come  within  the  scope  of  general 
assumpsit  but  not  within  the  letter  of  the  usual  forms.  Thus, 
it  is  held,  that,  while  rent  is  recoverable  in  general  assumpsit, 
there  must  be  included  a  common  count  for  use  and  occupation 
of  land,  as  the  other  common  counts  do  not  justify  a  recovery 
for  rent.37 

A  demurrer  to  the  common  counts  in  assumpsit,  in  the  usual 
form,  will  be  overruled.  And  this  is  true  although  there  be 
joined  with  the  common  counts  special  counts  on  a  contract 
which  it  is  contended  is  not  admissible  in  evidence  under  the 
common  counts.  Whether  a  written  agreement  can  be  intro- 
duced to  sustain  a  recovery  under  the  common  counts  must 
be  determined  when  the  evidence  is  offered.  The  question  can- 
not be  raised  by  a  demurrer  to  said  counts.38 

36.  1  Chitty  340,  note;   Bannister  v.  Coal   &  Coke   Co.,   63  W.   Va. 
502,  61  S.  E.  338;  Lord  v.  Henderson,  65  W.  Va.  321,  64  S.  E.  134. 

37.  Lawson  v.  Williamson  Coal  &  Coke  Co.,  61  W.  Va.  669,  57  S. 
E.  258;  Sandusky  v.  Gas  Co.,  63  W.  Va.  260,  59  S.  E.  1082.     Under  a 
common  count  for  use  and  occupation  of  land,  a  written  agreement 
to    pay    rent    is    admissible    to    prove    the    amount    due.      Goshorn    v. 
Steward,   15   W.   Va.   657;    Lawson  v.   Williamson   Coal    &  Coke   Co., 
supra.      For   the   form   of   a    common    count    for    use    and    occupation 
of  land,  see  2  Chitty  40.     For  forms  of  various  other  common  counts 
adapted  to  different  circumstances,  see  idem,  36-90. 

38.  Portsmouth    Refining  Co.  v.   Oliver   Refining  Co.,    109   Va.   513, 
64  S.  E.  56;  Bannister  v.  Coal  &  Coke  Co.,  63  W.  Va.  502,  61  S.   E. 
338.     And  where   the   common   counts   in   a   declaration   in   assumpsit 
are    good,    a    demurrer    to    the    entire  declaration  will  be  overruled. 
Grubb  v.  Burford,  98  Va.  553,  37  S.   E.  4. 


§    86  OF    GENERAL    AND    SPECIAL   ASSUMPSIT  129 

General  Assumpsit  on  an  Implied  Liability. 

As  we  have  seen,  the  distinguishing  feature  of  general  as- 
sumpsit  is  that  it  lies  exclusively  on  implied  contracts,  and,  in 
those  instances  where  the  declaration  may  be  general  even 
though  there  has  been  a  special  and  express  contract,  the  cause 
of  action  is  the  implied  legal  liability,  and  the  recovery  is 
based  thereon ;  the  special  contract  being  but  evidence  of  the 
measure  of  damages.  It  is  proposed,  in  this  connection,  to 
discuss  briefly  some  of  the  instances  in  which  the  law,  in 
the  absence  of  an  actual  contract,  will  imply  an  obligation  to 
pay,  enforceable  by  general  assumpsit.  Any  extended  discus- 
sion of  this  principle  would  involve  a  treatment  of  the  law 
of  quasi  contracts.  This  would  be  out  of  place  here,  and 
only  some  of  the  general  principles  enunciated  by  the  courts 
of  Virginia  and  West  Virginia  will  be  noticed. 

In  general,  where  the  plaintiff  shows  that  he,  either  by  com- 
pulsion of  law,  or  to  relieve  himself  from  liability,  or  to  save 
himself  from  damage,  has  paid  money  which  the  defendant 
ought  to  have  paid,  the  count  for  money  paid  will  be  supported ; 
and  where  money  has  been  paid  for  the  use  of  the  defendant, 
the  request  necessary  to  sustain  a  recovery  may  be  either  express 
or  implied;  and  the  request,  as  well  as  the  promise,  will  be  im- 
plied where  the  consideration  consists  in  the  plaintiff's  having  been 
compelled  to  do  that  to  which  the  defendant  was  legally  compella- 
ble,  or  where  the  defendant  has  adopted  and  enjoyed  the  bene- 
fit of  the  consideration.39  Wherever  one  person  requests  or  al- 
lows another  to  assume  such  a  position  that  the  latter  may  be 
compelled  by  law  to  discharge  the  former's  legal  liabilities,  the 
law  imports  a  request  and  promise  by  the  former  to  the  latter — 
a  request  to  make  the  payment  and  a  promise  to  repay — and  the 
obligation  thus  created  may  be  enforced  by  assumpsit  for  money 
paid,  laid  out,  and  expended.40  So  also,  the  common  counts  may 
be  supported  by  evidence  that  the  defendant  obtained  the  plain- 

39.  Nutter   v.    Sydenstricker,    11    W.    Va.    535;    Lee    v.    Va.     Bridge 
Co.,  18  W.  Va.  299. 

40.  Barrett  v.   Armstrong,   56   W.   Va.   293,   49   S.    E.    140;   Teter  v. 
Teter,  65  W.  Va.  167,  63   S.   E.  967. 

—9 


130  ASSUMPSIT  §    86 

tiff's  money  by  fraud,  false  color,  or  pretense;41  for  "wherever 
one  person  has  in  his  hands  money  equitably  belonging  to  an- 
other, that  other  person  may  recover  it  by  assumpsit  for  money 
had  and  received."42  The  action  of  assumpsit  lies  in  almost 
every  case  where  one  receives  money  which  in  equity  and  good 
conscience  belongs  to  another,  or  ought  to  be  refunded.  While 
it  lies  upon  an  express  promise,  such  a  promise  is  not  necessary. 
It  may  be  maintained  wherever  anything  is  received  or  done 
from  the  circumstances  of  which  the  law  implies  a  promise  of 
compensation.  The  implied  promise  creates  all  the  privity  neces- 
sary to  support  the  action.43  Such  implication,  moreover,  does  not 
alone  arise  from  the  payment  or  receipt  of  money.  Where  one 
renders  services  for  another  at  the  latter's  request,  the  law,  in  the 
absence  of  an  express  agreement,  implies  a  promise  to  pay  what 
the  services  are  reasonably  worth,  unless  it  can  be  inferred  from 
the  circumstances  that  the  services  were  to  be  rendered  without 
compensation.44 

However,  an  action  of  assumpsit  does  not  lie  for  money  vol- 
untarily paid  for  another,  without  either  the  request  or  the  rati- 
fication of  the  one  for  whom  the  money  is  paid ;  for  no  assump- 
sit is  raised  by  the  mere  voluntary  payment  of  the  debt  of  an- 
other.45 So,  also,  as  there  is  no  privity  of  contract  between  the 
payee  or  holder  of  a  check  and  the  bank  upon  which  it  is  drawn, 
unless  the  bank  has  in  writing  accepted  or  certified  such  check, 
there  can  be  no  recovery  by  such  payee  against  the  bank  under  a 
count  in  assumpsit  for  money  had  and  received,  where  the 
payee's  agent  has  endorsed  and  collected  the  check  and  misap- 

41.  Robinson  v.  Welty,  40  W.  Va.  385,  22  S.   E.   73. 

42.  Langhorne  v.  McGhee,  103  Va.  281,  49  S.  E.  44. 

43.  B.   &  O.  R.  Co.  v.  Burke,  102  Va.  643,  47   S.   E.  824. 

44.  Briggs  v.  Barnett,  108  Va.  404,  61  S.  E.  797.     Such  an  inference 
that  services  were  to  be    rendered    without    compensation    is   legally 
drawn      in   the   case   of  persons   living  together   as   members   of   the 
same  family.     In  such  cases  the  law  implies  no  promise  of  remuner- 
ation  for   services   rendered   to   each   other.     Stoneburner   v.    Motley, 
95  Va.  784,  30  S.  E.  364;  Beale  v.  Hall,  97  Va.  383,  34  S.  E.  53;  Coons 
v.   Coons,  106  Va.  572,  56  S.   E.  576;   Riley  v.   Riley,  38   W.  Va.   283, 
18   S.   E.  569. 

45.  Briggs  v.  Barnett,  108  Va.  404,  61  S.  E.  797;  Crumlish  v.  Cen- 
tral  Imp.  Co.,  38- W.  Va.  390,  18  S.   E.  456. 


§    86  OF    GENERAL    AND    SPECIAL    ASSUMPSIT  131 

propriated  the  proceeds,  although  such  agent  was  not  authorized 
to  endorse  or  collect  the  check,  and  the  bank  therefore  paid  the 
money  to  an  unauthorized  person.46 

Difference  between  General  and  Special  Assumpsit. 

There  is  nowhere  else  in  the  books  so  clear  a  discussion  of  the 
subjects  of  general  and  special  assumpsit  as  that  contained  in 
the  note  of  Hare  &  Wallace  to  the  case  of  Cutter  v.  Powell.47 
The  authority  of  the  work  of  these  annotators  is  evidenced  by 
the  frequency  of  its  citation  by  the  courts,  and  they  have  treated 
the  subject  so  clearly  that,  as  has  been  said,  "there  is  little  left 
but  to  give  them  the  proper  credit."48  In  the  following  pages 
their  work  has  been  freely  drawn  from,  with  the  endeavor,  in 
each  instance,  to  give  them  the  proper  credit. 

They  say:49  "The  confusion  and  obscurity  which  exist  in  the 
books,  in  relation  to  this  matter  of  special  and  general  assump- 
sit, have  arisen  from  an  erroneous  impression  that,  when  there 
has  been  a  special  contract,  and  the  plaintiff  brings  general  as- 
sumpsit, the  special  contract  of  the  defendant  is  in  some  degree, 
or  to  some  extent,  the  ground  of  the  plaintiff's  recovery.  This 
impression  arises  from  an  error  as  to  the  legal  nature  and 
ground  of  general  assumpsit,  which  rest  only  on  a  legal  liability 
springing  out  of  a  consideration  received;  and  the  difficulty 
clears  away  if  it  is  kept  always  in  mind,  that  in  no  case  in  which 
general  assumpsit  is  brought,  though  there  may  have  been  a 
special  agreement,  does  the  plaintiff  legally  ground  his  claim  at 
all  upon  the  special  agreement  or  promise,  nor  derive  any  right 
from  it,  nor  make  it  any  part  of  his  case :  he  proceeds  exclusively 
upon  the  implied  legal  engagement  or  obligation  of  the  defend- 
ant, to  pay  the  value  of  services  ordered  or  received  by  him.  In 
special  assumpsit,  the  express  promise  of  the  defendant  is  an 
integral  essential  part  of  the  plaintiff's  right  and  of  his  decla- 
ration, because  it  fixes  the  measure  of  damage  to  which  he  is  en- 
titled: but  in  general  assumpsit,  he  claims,  not  the  conventional, 

46.  B.  &  O.  R.  Co.  v.  Bank,  102  Va.  753,  47  S.  E.  837. 

47.  2  Smith's  Leading  Cases   (5th  Am.  Ed.)  22-53. 

48.  Stephen's  Pleading  (2nd  Edition  by  Andrews),  note  to  §  82. 

49.  Note  to   Cutter  -v.   Powell,  2  Smith's  Leading  Cases   (5th   Am. 
Ed.)   51. 


132  ASSUMPSIT  §    8£ 

but  the  legal  measure  of  damages  belonging  to  the  consideration 
which  he  proves,  and  that  is  the  actual  value  of  the  considera- 
tion; and  the  promise  or  express  contract  can  have  no  weight 
in  the  proceeding,  except  as  evidence  of  the  fact  of  consideration 
or  of  its  value.  Whenever,  therefore,  the  plaintiff  brings  gen- 
eral assumpsit,  he  grounds  his  claim  not  upon  the  special  con- 
tract.- But,  the  rule  of  law  is  that,  if  the  defendant  can  show 
that  there  has  been  a  special  contract  in  relation  to  the  matter, 
he  will  defeat  the  plaintiff's  general  assumpsit,  for  the  law  will 
not  imply  a  promise  where  there  has  been  an  express  one;  that 
is  to  say,  where  there  has  been  a  conventional  measure  of  dam- 
ages, foresettled  by  mutual  agreement,  the  plaintiff  shall  not  cul 
loose  from  it,  and  claim  the  legal  measure  of  damages."50 

When  General  Assumpsit  Will  Not  Lie. 
In  general,  it  may  be  stated  that  "while  a  special  contract  re- 
mains open,  i.  e.,  unperformed,  the  party  whose  part  of  it  is 
unperformed  cannot  sue  in  indebitatus  assumpsit  to  recover  a 
compensation  for  what  he  has  done,  until  the  whole  is  com- 
pleted."51 So  it  is  held  that  damages  for  the  breach  of  a  special 
unexecuted  contract  are  not  recoverable  under  the  common 
counts  in  assumpsit.52 

50.  So,  in  Buena  Vista  Co.  v.  McCandlish,  92  Va.  297,  23  S.  E.  781, 
it  was  held  that  in  such  cases  the  special  contract  is  not  introduced 
to  support  the  form  of  action,  but  as   evidence  to  prove  the  plain- 
tiff's case  and  that  it  makes  no   difference   that  the   special   contract 
is  under  seal.     See  also  Newberry  Land  Co.  v.  Newberry,  95  Va.  Ill, 
27  S.  E.  897.     In  Houston  v.  McNeer,  40  W.  Va.  365,  22  S.  E.  80,  the 
court    said:      "In    no    case    in    which  general   assumpsit  is  brought, 
though   there   may   have   been   a   special   agreement,    does    the   plain- 
tiff legally   ground   his   claim   at  all   upon   the   special   agreement   or 
promise    (or  warranty),   nor   derive   any   right   from   it,   nor   make   it 
any  part  of  his  case.     He  proceeds  exclusively  upon  the  implied  legal 
engagement   or   obligation.     See   Cutter  v.   Powell,   2   Smith's    Lead. 
Cas.  (8th  Ed.),  pt.  1,  p.  48.     Whenever,  therefore,  the  plaintiff  brings 
general    assumpsit,    he    grounds    his    claim,    not    on    the    special    con- 
tract    *     *     *,     but  upon  an  existing  precedent  debt  or  liability." 

51.  Note   to   Cutter  v.   Powell,   2   Smith's   Leading  Cases    (5th   Am. 
Ed.)  27;  Stephen's  Pleading,  §  82,  note;  2  Encl.  PL  &  Pr.  991,  note. 
The  above  proposition  is  subject  to  many  exceptions  and  limitations 
set  forth  in  the  following  pages. 

52.  Mankin  v.  Jones    (W.  Va.),  69   S.   E.  981. 


§    86  OF    GENERAL    AND    SPECIAL    ASSUMPSIT  133 

When  General  Assumpsit  Will  Lie,  Though  Tliere  Has  Been  a 
Special  Contract. 

(1)  Special  Contract  Fully  Executed. — "Where  there  has 
been  a  special  contract,  the  whole  of  which  has  been  executed 
on  the  part  of  the  plaintiff,  and  the  time  of  payment  on 
the  other  side  is  past,  a  suit  may  be  brought  on  the  special  con- 
tract, or  a  general  assumpsit  may  be  maintained;  and  in  the  last 
case  the  measure  of  damages  will  be  the  rate  of  recompense  fixed 
by  the  special  contract."53 

The  above  rule  only  applies  to  those  cases  where  the  contract 
calls  for  the  payment  of  money  by  the  defendant.  "When  the 
remuneration  was  not  to  be  in  money,  but  was  to  be  in  any 
other  kind  of  personal  property,  or  in  personal  services,  or  in 
the  doing  any  collateral  act  (as  the  delivery  of  a  bond  or  the 
like),  there  the  general  indebitatus  assumpsit  count  is  not  suffi- 
cient, but  the  declaration  must  be  special."54 

As  a  corollary  of  the  above  rule,  it  is  held  that  the  holders  of 
bills  of  exchange,  notes,  checks,  bonds,  or  orders,  may  recover 
on  the  money  counts.  In  such  cases  the  action  is  not  founded 
on  the  bill,  note,  or  other  instrument,  but  upon  the  implied  un- 
dertaking, and  the  bill  or  note  is  only  evidence  of  that  under- 
taking. The  above  is  stated  to  be  the  rule  as  to  the  immediate 
parties  to  the  instrument,  and  also  as  to  actions  by  an  endorsee 

53.  Note  to  Cutter  v.  Powell,  2  Smith's   Leading  Cases    (5th  Am. 
Ed.)  41;  2  End.  PI.  &  Pr.  991,  note. 

Where  a  plaintiff  has  done  everything  which  has  to  be  executed 
on  his  part,  and  nothing  remains  to  be  done  but  the  performance  of 
a  duty  on  defendant's  part  to  pay  money  due  the  plaintiff  under 
contract,  the  plaintiff  may  recover  on  the  common  counts  in  as- 
sumpsit, and  need  not  declare  specially,  however  special  the  con- 
tract which  has  been  performed  may  have  been.  But  in  such  cases, 
the  measure  of  damages  is  fixed  by  the  special  contract.  B.  &  O. 
R.  Co.  v.  Polly,  Woods  &  Co.,  14  Gratt.  447;  Brooks  v.  Scott,  2 
Munf.  344;  Brown  v.  Ralston,  9  Leigh  532;  Jackson  v.  Hough,  38 
W.  Va.  390,  18  S.  E.  575;  Empire  Coal  &  Coke  Co.  v.  Hull  Coal  & 
Coke  Co.,  51  W.  Va.  474,  41  S.  E.  917;  Lawson  v.  Williamson  Coal 
&  Coke  Co.,  61  W.  Va.,  669,  57  S.  E.  258;  Lord  v.  Henderson,  65 
W.  Va.  321;  64  S.  E.  134;  Bannister  v.  Coal  &  Coke  Co.,  63  W.  Va. 
502,  61  S.  E.  338;  Mankin  v.  Jones  (W.  Va.),  69  S.  E.  981. 

54.  Brooks  v.  Scott,  2  Munf.  344   (where  the  remuneration  was  to 
be  in  tobacco}. 


134  ASSUMPSIT  §    86 

or  assignee  against  a  remote  endorser  or  assignor,  or  the  payee, 
of  a  note  or  bond.  But  the  rule  is  otherwise  where  it  is  shown 
that  the  defendant  has  actually  never  received  any  consideration, 
as,  e.  g.,  that  the  money  was  lent  or  paid  to  a  third  person  on 
the  defendant's  credit,  or  where  the  defendant  is  simply  a  surety 
and  no  consideration  passed  to  the  defendant  from  the  plain- 
tiff, and  they  had  not  had  any  dealings  together,  or  where  the 
defendant  was  a  mere  accommodation  endorser,  and  had  really 
received  no  money.  In  such  cases  the  obligation  of  the  defend- 
ant is  a  mere  collateral  one  and  there  should  be  a  special  count 
on  the  instrument.  The  fact  that  the  note  was  not  given  for 
money,  but  for  land  or  work,  will  not  defeat  the  action  on  the 
common  counts.55  Thus,  an  unpaid  check  may  be  offered  in 
evidence  under  the  money  counts  in  an  action  against  the  drawer ; 
and  if  there  is  no  other  evidence  in  the  case,  it  is  of  itself  suffi- 
cient to  entitle  the  plaintiff  to  recover  on  those  counts.56 

(2)  Special  Contract  Deviated  from  by  Common  Consent.— 
"If  there  has  been  a  special  contract  which  has  been  al- 
tered or  deviated  from  in  particulars,  by  common  consent,  gen- 
eral assumpsit  will  lie  when  the  work  has  been  performed ;  and, 
in  such  case,  if  the  original  contract  has  not  been  wholly  lost 
sight  of  in  the  work  as  executed,  the  rates  of  recompense  fixed 
by  it,  shall  be  the  measure  of  damages  as  to  those  parts  in  which 
it  can  be  traced  in  the  performance;  and  for  the  new  or  extra 
work,  the  recovery  shall  be  upon  a  quantum  meruit."51 

55.  4   Rob.   Prac.   547-554;   Bank  of  the   U.   S.  v.  Jackson,   9   Leigh 
221;    Drane   v.    Scholfield,    6    Leigh    386    (opinion    of  Judge    Tucker); 
Mackie  v.  Davis,  2  Wash.  219;   Hughes  v.   Frum,  41  W.   Va.  445,  23 
S.   E.   604;   Walker  v.   Henry,  36   W.   Va.   100,   14   S.   E.   440;   Butter- 
worth   v.    Ellis,    6    Leigh    106;    McWilliams    v.    Willis,    1    Wash.    199; 
Anderson  v.  Kanawha  Coal  Co.,  12  W.  Va.  526.     See,  however,  Mer- 
chants'   &    Mechanics'    Bank    of   Wheeling  v.    Evans,    9    W.    Va.    373, 
where  it  was  held  that  on  the  common  counts  for  money  loaned,  in  an 
action  of  assumpsit,  the  plaintiff  may  recover  of  all  the  makers  of  a 
promissory  note,   though   the   money   for  which   the   note   was   given 
was  received  by  one  of  them  only,  and  the  others  were   sureties. 

56.  Blair  v.  Wilson,  28  Gratt.  165. 

57.  Note  to   Cutter  v.   Powell,  2   Smith's   Leading  Cases    (5th   Am. 
Ed.)   42. 


§    86  OF    GENERAL    AND    SPECIAL    ASSUMPSIT  135 

Of  the  two  classes  [(1)  and  (2)]  above  mentioned,  the  au- 
thors of  the  note  say: 

The  defendant  "shall  not  be  permitted  to  defeat  a  just  claim 
by  setting  up  a  contract  which  he  himself  has  broken;  and  the 
law,  at  the  same  time,  secures  justice  to  him  by  receiving  as  evi- 
dence of  the  value  of  the  consideration  as  between  the  parties,  the 
prices  agreed  to  be  paid."58 

(3)  Work  Not  Done  According  to  Special  Contract,  But  Ac- 
cepted— Deviations. — "If  there  has  been  a  special  contract  which 
remains  unaltered,  and  the  work  has  been  performed,  but 
not  according  to  the  terms  of  the  contract,  so  that  the  plaintiff 
could  recover  nothing  in  a  special  assumpsit  on  the  contract, 
the  question  whether  he  can  recover,  in  a  quantum  meruit,  the 
value  which  the  work  is  of  to  the  defendant  will  depend  sub- 
stantially upon  the  question,  whether  the  work  done  is  by  the 
defendant's  consent  or  against  it.  If  he  has  accepted  and  re- 
tained the  work,  when  finished,  his  consent  is  clear:  if  he  has 
rejected  the  performance  when  completed,  or  has  done  nothing 
by  which  he  adopts,  or  benefits  himself,  of  the  work,  still,  it 
seems,  that  if  he  knew  of  the  altered  work  going  on,  and  did  not 
dissent,  prohibit,  or  stop  the  workman,  his  assent  is  to  be  pre- 
sumed; for  when  the  defendant  knows  that  the  plaintiff  is  go- 
ing on,  bona  fide,  under  an  honest  impression  that  he  is  entitling 
himself  to  a  recompense,  it  is  fraud  in  him  to  lie  by,  and  suffer 
the  plaintiff  to  lose  his  labor,  and  then  get  the  work  for  nothing ; 
for  in  many  of  these  cases,  the  work  will  become  the  property  of 
the  defendant  necessarily;  as  in  the  case  of  an  article  made  out 
of  his  materials,  or  a  house  built  upon  his  ground."59 

Of  the  class  above  mentioned  the  authors  say : 

"The  plaintiff  derives  no  right  from  the  express  contract,  he 
grounds  his  claim  upon  the  consideration  rendered,  and  the  de- 
fendant's request  implied  from  his  acquiescence  or  acceptance: 
the  defendant  cannot  defeat  him  by  setting  up  the  express  con- 
tract, for  that  is  a  totally  different  contract  from  the  one  de- 
clared on:  that  express  contract  remains  untouched,  and  if  it 

58.  Idem,  51. 

59.  Idem,  42. 


136  ASSUMPSiT  §    86 

be  not  actually  waived  or  abandoned,  will  sustain  an  action  by 
the  defendant  for  the  breach  of  it."60 

Thus,  a  plaintiff  having  done  work  under  a  special  contract, 
but  not  in  full  compliance  therewith,  and  the  same  having  been 
accepted  by  defendant,  who  was  thereby  benefited,  may  recover 
the  contract  price  therefor  under  a  quantum  meruit,  less  compen- 
sation for  imperfections  of  the  work  or  material;  and  in  such  a 
case  the  special  contract  would  furnish  the  criterion  for  the 
measurement  of  remuneration.  The  acceptance  of  work  done 
admits  benefits,  and  that  remuneration  is  due  therefor.61  But 
"One,  unwilling,  ought  not  to  be  made  liable  for  a  debt,  or  when 
ignorant  of  facts  making  him  liable.  There  ought  to  be  a  re- 
quest, or,  if  he  is  to  be  made  liable  because  he  derives  benefit, 
he  ought  to  have  knowledge  of  such  circumstances  as  would 
tell  him  that  in  law  he  would  be  liable."62  On  this  principle 
where  A  contracted  with  B,  a  contractor,  to  furnish  all  materials 
for,  and  build  complete,  a  house,  and  C  furnishes  some  material 
used  in  construction,  A  knowing  of  his  doing  so,  but  not  know- 
ing but  that  C  was  furnishing  such  material  for  B,  the  contractor, 
and  the  building,  when  completed,  was  accepted  by  A  from  B,  no 
implied  contract  arose  in  favor  of  C  to  compel  A,  the  owner  of 
the  house,  to  pay  for  such  material.  There  is  no  privity  either 
in  fact  or  law  between  A  and  C.63 

(4)  Special  Contract  Partly  Performed. — "If  there  has  been 
a  special  contract,  and  the  plaintiff  has  performed  a  part  of 
it  according  to  its  terms,  and  been  prevented  by  the  act  or  con- 
sent of  the  defendant,  or  by  the  act  of  the  law,  from  perform- 
ing the  residue,  he  may,  in  general  assumpsit,  recover  compen- 
sation for  the  work  actually  performed,  and  the  defendant  can- 
not set  up  the  special  contract  to  defeat  him."64 

Of  the  above  class  the  authors  say:     "It  would  be  obviously 

60.  Idem,  51,  52. 

61.  Smith  v.  Packard,  94  Va.  730,  28  S.  E.  586;  Railroad  Company 
v.  Lafferty,  2  W.  Va.  109;  Empire  Coal  &  Coke  Co.  v.  Hull  Coal  & 
Coke   Co.,  51   W.  Va.  474,   41   S.   E.   917. 

62.  Limer  v.  Trader's  Co.,  44  W.  Va.  175,  28  S.  E.  730. 

63.  Limer   v.   Trader's    Co.,   supra. 

64.  Note   to   Cutter  v.   Powell,  2   Smith's   Leading  Cases    (5th   Am. 
Ed.)    43. 


§    86  OF    GENERAI,    AND    SPECIAL    ASSUMPSIT  137 

unjust  to  allow  him  (the  defendant)  to  defeat  the  plaintiff  by 
alleging  the  special  agreement  which  he  has  violated  and  re- 
jected."65 

In  accordance  with  the  above  principle,  the  Virginia  court  has 
said :  "If  a  party  is  prevented  from  fully  performing  his  contract 
by  the  fault  of  the  other  party,  it  is  clear  that  the  party  thus  at 
fault  cannot  be  allowed  to  take  advantage  of  his  own  wrong,  and 
screen  himself  from  payment  for  what  has  been  done  under  the 
contract.  The  law  will  thereby  imply  a  promise  on  his  part  to 
remunerate  the  other  party  for  what  he  has  done  at  his  request, 
and  upon  this  promise  an  action  may  be  brought."66  So,  where 
a  common  carrier  contracted  to  deliver  a  crop  of  wheat  at  an 
agreed  price  per  bushel,  and  a  large  proportion  of  the  crop  was 
delivered  in  good  order;  but  from  the  unavoidable  effects  of  a 
storm — inevitable  accident — a  small  part  was  delivered  in  a  dam- 
aged condition,  and  another  small  portion  was  lost,  it  was  held 
that  in  an  action  by  the  carrier  for  the  freight,  he  was  entitled 
to  recover,  under  the  common  indebitatus  count,  the  agreed  price 
for  the  whole  quantity  so  delivered  or  lost.67 

Where  the  contract,  though  partly  performed,  has  been  aban- 
doned by  mutual  consent,  the  plaintiff  may  resort  to  the  common 
counts  alone  for  remuneration  for  what  he  has  done  under  the 
special  agreement.68 

If  money  be  paid  on  a  contract  of  sale,  which  is  wholly  re- 
scinded, either  by  the  mutual  consent  of  the  parties,  or  by  vir- 
tue of  a  clause  contained  therein,  or  the  consideration  of  which 
wholly  fails,  the  party  making  such  payment,  if  he  has  been 
guilty  of  no  fraud  or  illegal  conduct  in  the  transaction,  may  re- 
cover the  money  under  the  common  counts  for  money  had  and 
received;  and  this  is  the  usual  and  better  mode  of  declaring  in 
such  cases,  though  a  special  count  may  be  used.  In  such  cases 

65.  Idem,  p.   52. 

66.  Smith   v.    Packard,   94   Va.    730,   27    S.    E.   586    (quoting  from   2 
Parson's   on   Contracts   522).     See   also     Barrett  v.    Raleigh   Coal    & 
Coke  Co.,  51  W.  Va.  416,  41  S.   E.  220   (common  counts  appropriate 
means  of  recovery). 

67.  Gait  v.  Archer,  7   Gratt.  307. 

68.  Railroad  Co.  v.  Lafferty,  2  W.  Va.   109;    Empire   Coal   &   Coke 
Co.  v.  Hull  Coal  &  Coke  Co.,  51  W.  Va.  474,  41  S.  E.  917. 


138  ASSUMPSIT  §    86 

the  special  contract  is  not  introduced  to  support  the  form  of  ac- 
tion, but  as  evidence  to  prove  the  plaintiff's  case,  and  it  makes 
no  difference  that  the  special  contract  is  under  seal.69 

(5)  Part  Performance,  and  Abandonment  of  Residue. — 
"But  if  there  has  been  an  entire  executory  contract,  and  the 
plaintiff  has  performed  a  part  of  it,  and  then  willfully  refuses, 
without  legal  excuse  and  against  the  defendant's  consent,  to 
perform  the  rest,  he  can  recover  nothing  either  in  general  or 
special  assumpsit."70 

The  above  rule,  however,  only  applies  "where  the  contract  is 
entire  and  indivisible,  and  by  the  nature  of  the  agreement,  or  by 
express  provision,  nothing  is  to  be  paid  till  all  is  performed ;  but 
an  agreement,  embracing  several  particulars,  though  made  at 
one  time  and  about  one  affair,  may  yet  have  the  nature  and  op- 
eration of  several  different  contracts.  *  *  *  It  seems  there- 
fore, that  if,  by  operation  of  law,  or  by  the  terms  of  the  agree- 
ment, certain  sums  become  due  upon  the  performance  of  cer- 
tain separate  parts  of  the  work,  the  consideration  then  is  sever- 
able,  and  distinct  legal  assumpsits  arise,  and  an  action  for  such 
particular  sums  may  be  maintained  on  performance  of  such  parts 
of  the  work.  And  in  construing  the  consideration  as  entire  and 
distributed,  the  law  will  be  guided  by  a  respect  to  general  con- 
venience and  equity,  and  by  the  good  sense  and  reasonableness 
of  the  particular  case;  for  it  must  be  supposed  that  it  was  the 
intention  of  the  parties  that  such  construction  should  take  place 
in  the  occurrence  of  contingencies  not  contemplated  and  pro- 
vided for  at  the  making  of  the  contract.  *  *  *  And  even 

69.  Johnson  v.  Jennings,  10  Gratt.  1;  Buena  Vista  Co.  v.  McCand- 
lish,  92  Va.  297,  23   S.  E.  781;   Newberry  Land  Co.  v.  Newberry,   95 
Va.  Ill,  27   S.   E.  897;   Robinson  v.  Welty,   40  W.  Va.  385,  22   S.    E. 
73.     If  the  consideration  wholly  fails,  and  the  plaintiff  does  declare 
specially,    a    special    count    to    recover    the    payments    made    (en    the 
purchase  price  of  a  tract  of  land)  which  avers  a  state  of  facts  which, 
if  true,   shows   that   the   plaintiff  never   received   anything   under   the 
contract    of    sale,    and    that    the    defendant    cannot    convey    what    he 
contracted  to   convey,   sufficiently  avers   a   substantial,   if  not  a  total 
failure    of    consideration,    and    is    a    good    count.      Riverside    Co.    v. 
Husted,  109  Va.  688,  64  S.  E.  958. 

70.  Note  to  Cutter  v.   Powell,  2   Smith's   Leading  Cases   (5th   Am. 
Ed.)   44. 


§    86  OF    GENERAL   AND    SPECIAL    ASSUMPSIT  139 

though  the  consideration  and  the  contract  be  entire,  by  the  appar- 
ent terms  of  the  agreement,  yet  the  circumstances  may  be  such 
as  to  entitle  the  plaintiff  in  law  to  recover  a  ratable  recompense 
upon  partial  performance;  for  as  the  question  of  dependent  and 
independent  entire  promises  depends  wholly  on  intention  and 
equity,  it  is  obvious  that  there  may  be  an  intermediate  class  of 
cases,  where  partial  performance  entitles  to  partial  recovery  and 
entire  performance  must  be  precedent  to  a  recovery  of  the 
whole."  And,  in  relation  to  this  point,  it  is  the  rule  "that  where 
an  entire  work  is  to  be  done,  for  a  certain  sum,  of  which  parts 
are  to  be  paid  at  fixed  periods,  during  the  time  in  which  the 
work  should  be  going  on,  here  the  performance  is  neither  wholly 
dependent,  nor  wholly  independent ;  but  the  plaintiff  may  recover 
an  instalment,  at  the  period  fixed,  by  showing  a  ratable  per- 
formance, but  not  the  whole  until  performance  is  complete."71 
The  case  of  a  servant  hiring  himself  for  a  certain  period,  as 
for  an  entire  year,  at  a  fixed  sum  for  the  year,  and  then  quitting, 
the  employment  before  the  contract  period  of  his  service  has 
expired,  furnishes  an  illustration  of  the  above  rule.  In  such 
cases,  as  a  general  rule,  at  any  rate  where  the  servant  is  a  mere 
menial  or  ordinary  one,  "the  court  may  well  infer  or  the  jury  find 
from  the  general  and  known  practice  and  usage  in  such  cases, 
that,  though  the  contract  is  entire,  yet  the  compensation  is  pay- 
able by  instalments  at  certain  periods,  as,  a  week,  month,  or 
quarter,  according  to  the  kind  of  service,  except  where  there  is 
a  clear  understanding  that  nothing  shall  be  due  till  the  year  of 
service  is  wholly  ended.  The  servant  then  may  recover  a  ratable 
recompense  for  what  service  he  has  rendered,  and  the  master 
will  have  his  cross  action  for  breach  of  the  entire  contract:  and 
thus  justice  will  be  reached,  and  no  legal  principle  disturbed."72 

(6)  Special  Contract  Void,  Voidable,  or,  by  Defendant's 
Fault,  Impossible  to  Perform. — "If  the  special  contract  under 
which  partial  service  is  performed  be  void  or  voidable,  and 
voided,  or  from  the  defendant's  fault  impossible  to  be  per- 

71.  Note  to  Cutter  v.  Powell,  2   Smith's   Leading  Cases    (5th  Am. 
Ed.)   45,  46. 

72.  Idem,   47.      See,   as   well   illustrating   this    principle,   the    case    ot 
Matthews  v.  Jenkins,  80  Va.  463. 


140  ASSUMPSIT  §    87 

formed,  it,  of  course,  cannot  be  set  up  to  defeat  the  plaintiff's 
quantum  meruit."73 

Of  this  class,  the  authors  say:  "Where  the  special  contract  is 
not  legally  binding,  of  course  it  cannot  stand  in  the  way."74 

Thus,  in  McCrowell  v.  Burson,  75  defendant  employed  plaintiff 
by  parol  contract  to  furnish  labor  and  materials  to  build  a  house, 
and  agreed  to  pay  him  in  money,  merchandise  and  land.  Plain- 
tiff incurred  expense  in  preparing  for  the  work,  and  defendant 
refused  to  let  him  do  it.  Plaintiff  brought  an  action  of  assumpsit, 
with  a  count  on  the  special  contract,  and  with  common  counts 
for  labor  done  and  materials  furnished  at  defendant's  request. 
The  court  held  that  the  special  contract  could  not  be  enforced 
because,  though  it  was  intended  to  pass  ownership  of  real  es- 
tate it  was  not  in  writing  and  signed  by  the  defendant ;  but  that, 
though  the  special  contract  was  unenforceable  yet  the  defend- 
ant was  liable  under  a  new  implied  contract  for  the  work  done 
and  materials  furnished.  So,  it  is  said  in  Clark  on  .Contracts,76 
"Where  an  agreement  is  not  illegal,  but  merely  void,  or  unen- 
forceable, and  one  of  the  parties  refuses  to  perform  his  promise 
after  performance  or  part  performance  by  the  other,  the  law 
will  create  a  promise  to  pay  for  the  benefits  received."  Illustra- 
tions given  are  'cases  of  contracts  which  are  unenforceable  be- 
cause of  noncompliance  with  the  statute  of  frauds. 

§   87.    When  necessary  to  declare  specially. 

"Special  assumpsit  is  the  only  appropriate  remedy  to  recover 
what  is  due  upon  or  for  the  breach  of  an  express  simple  con- 
tract when  the  plaintiff  grounds  his  cause  of  action  upon  the 
contract."77 

Where  the  special  agreement  continues  in  force  the  plaintiff 
must  ground  his  action  thereon  and,  consequently,  must  always 
declare  specially.78  Thus  where  the  action  is  for  a  breach  of 

73.  Note  to  Cutter  v.  Powell,  2   Smith's   Leading  Cases    (5th  Am. 
Ed.)    48. 

74.  Idem,  52. 

75.  79  Va.  290. 

76.  P.  552  (2nd  Ed.). 

77.  Stephen's  Pleading,  note  to  §  82;  2  End.  PI.  &  Pr.  990. 

78.  2   Encl.   PI.   &  Pr.  991,  note;   Graves'  notes  on   Pleading   (old) 
112. 


§    88         NATURE    AND    CONSTITUTION    OF    SPECIAL    COUNTS  141 

promise  to  marry,  for  failure  to  perform  stipulated  services,  or 
for  failure  to  accept  and  pay  for  goods  sold,  it  is  apparent  that 
in  order  to  recover  the  plaintiff  must  show  a  special  contract  and 
rely  on  it  as  the  basis  of  his  action ;  and,  under  the  rule  above 
stated,  this  necessitates  a  special  count  on  the  contract.79  So, 
damages  for  the  breach  of  a  special  unexecuted  contract  are  not 
recoverable  under  the  common  counts  in  assumpsit;80  and  gen- 
eral indebitatus  assumpsit  does  not  lie  for  the  breach  of  an  ex- 
press contract  of  warranty.81  It  is  obvious  that  in  such  cases 
the  plaintiff  must  ground  his  action  upon  the  express  contract. 
It  is  also  to  be  remembered  that  general  indebitatus  assumpsit 
only  lies  where  the  remuneration  is  to  be  in  money.  "When  the 
remuneration  was  not  to  be  in  money,  but  was  to  be  in  any  other 
kind  of  personal  property,  or  in  personal  services,  or  in  the  doing 
any  collateral  act,  (as  the  delivery  of  a  bond  or  the  like),  there 
the  general  indebitatus  assumpsit  count  is  not  sufficient,  but  the 
declaration  must  be  special."82 

§   88.    Nature  and  constitution  of  special  counts. 

General  Observations.  With  the  aid  of  the  liberal  statutes 
in  this  State,  one  of  which  provides  that :  "No  action  shall  abate 
for  want  of  form,  where  the  declaration  sets  forth  sufficient  mat- 
ter of  substance  for  the  court  to  proceed  upon  the  merits  of  the 
cause,"83  and  the  other  that,  on  a  demurrer,  the  court  shall  not 
regard  any  defect  or  imperfection  in  the  declaration  unless  there 
be  omitted  something  so  essential  to  the  action  that  judgment  ac- 
cording to  law  and  the  very  right  of  the  cause  cannot  be  given,84 
there  should  be  no  difficulty;  in  most  cases,  in  drawing  a  good 
special  count  in  assumpsit.  If  the  pleader  but  keep  in  mind  that 
he  is  endeavoring  to  state  the  breach  of  a  contract,  and  his  dam- 
ages sustained  as  a  consequence,  and  is  careful  to  so  state  his 

79.  Graves'   Notes   on   Pleading   (old)    112;    1   Chitty  348. 

80.  Mankin  v.  Jones   (W.  Va.),  69  S.  E.  981. 

81.  Robinson  v.  Welty,  40  W.  Va.  385,  22  S.  E.  73;  Houston  v.  Mc- 
Neer,  40  W.  Va.  365,  22  S.  E.  80. 

82.  Brooks  v.  Scott,  2  Munf.  344   (where  the  remuneration  was  to 
be  in  tobacco}. 

83.  Co.de,   §   3246. 

84.  Code,   §   3272. 


142  ASSUMPSIT  §    88 

case  as  to  show  that  the  contract  was  a  valid  one,  and  the  man- 
ner in  which  its  provisions  have  been  violated  by  the  defendant, 
he  cannot  go  far  wrong.  He  must  bear  in  mind  the  essentials 
of  a  valid  contract  in  order  that  he  may  properly  declare.  These, 
briefly  stated,  are  as  follow :  An  executory  contract  is  a  mutual 
agreement,  between  two  or  more  competent  parties,  for  a  valua- 
ble consideration,  touching  a  lawful  subject  matter,  to  do  or  not 
to  do  a  particular  thing,  and  in  the  form  required  by  law,  if  any. 
For  the  purposes  of  pleading  the  portions  of  the  above  defini- 
tion in  italics  are  the  important  ones.  The  plaintiff  seeks  to  re- 
cover the  damages  he  has  sustained  by  the  breach  of  a  lawful 
specific  promise,  supported  by  a  valuable  consideration,  and  if 
his  count  recites  these  essentials  he  is  safe.  The  simpler  and 
less  technical  and  involved  the  statement  is,  the  better.85  The 
text-books  abound  in  forms  which  are  applicable  to  all  except 
the  most  exceptional  cases,  and  it  is  always  both  easier  and  safer 
to  consult  and  use  an  approved  form  where  it  is  applicable.86 

Essential  Averments. — The  specific  averments  which  are,  in 
general,  essential  to  the  validity  of  a  special  count  in  assumpsit 

85.  In  Bank  of  the  U.  S.  v.  Jackson,  9  Leigh,  Judge  Tucker  says, 
on    page    239,    as    to    certain    defective    special    counts    in    assumpsit: 
"Had   the   pleader  been    content   to    set   forth    those    facts    simply   as 
they  occurred,  he  could  not  have  failed  to  draw  a  good  declaration. 
But   in   attempting  to   mould   the   transaction   into   a   technical   form, 
he    has    unfortunately    altogether    failed."      In    Kennaird    v.    Jones,    9 
Gratt.  184,  Judge  Lee  says  that  a  special  count  in  assumpsit  which 
sets  out  the  promise  and  undertaking  of  the  defendant,  the  consid- 
eration upon   which   it  was   founded,   the   breach   of   his   promise   by 
the    defendant,    and   the   loss    to    the    plaintiff   occasioned    thereby,    is 
undoubtedly  good.     To  the   same  effect,  see  Payne  v.  Grant,  81  Va. 
164;  C.  &  O.  Ry.  Co.  v.  Stock,  104  Va.  97,  51  S.  E.  161;  Mutual  Life 
Ins.   Co.  v.   Oliver,   95  Va.  445,  28   S.    E.  594;   Union   Stopper  Co.   v. 
McGara,    66   W.   Va.    403,    66    S.    E.    698.     The    declaration    need    not 
state  whether  the  contract  is  in  writing,  and  even  if  it   does  not  a 
written   agreement   may  be   introduced   in   evidence.      McWilliams   v. 
Willis,  1  Wash.  199;   Brooks  v.  Scott,  2  Munf.  344;   Butcher  v.  Hix- 
ton,  4  Leigh  at  p.  571;  Eaves  v.  Vial,  98  Va.  134,  34  S.  E.  978.     But 
see  5  Va.  L.  Reg.  794,  and  cases  cited. 

86.  4   Min.    Inst.   696.     For   forms    of   special    counts    in    assumpsit, 
see  4  Min.  Inst.  1672-1691;  1  Barton's  Law  Practice  339-347;  2  Chitty 
114-383. 


§    88         NATURE    AND    CONSTITUTION    OF    SPECIAL    COUNTS  143 

are  (1)  The  Promise;  (2)  The  Consideration;  (3)  The  Breach; 
(4)  The  Damages.  Others  which  are  in  some  cases,  but  not 
usually,  necessary  are  (5)  The  Notice;  (6)  The  Demand  or  Re- 
quest; (7)  Non- Payment. 

( 1 )  The  Promise. — There  can  be  no  contract  without  a  prom- 
ise,  express  or  implied,  and  hence  in  every  declaration  in  as- 
sumpsit  the  promise  is  the  very  gist  of  the  action,  and  must  be 
positively  averred.87     It  will  not  do  to  leave  the  promise  to  in- 
ference merely,  and  even  setting  out  in  the  declaration  in  hcec 
verba  a  contract  which  contains  a  promise  will  not  satisfy  the 
above  rule.88    There  is  no  difference  in  pleading  between  an  ex- 
press and  an  implied  promise;    all  promises    are     averred    as 
though  express.89     The  general  mode  of  stating  the  promise  is 
that  the  defendant    ''undertook    and    faithfully    promised,"    or 
simply  that  he  "promised,"  but  it  is  not   necessary    to   use    the 
word  promise  as  any  other  equivalent  word,  such  as  agreed,  will 
be  sufficient.90 

(2)  The  Consideration. — There  can    be  no    enforceable    nor 
binding  promise  unless  it  be  based  upon  a  valuable  consideration. 
The  want  of  a  statement  of  a  consideration  for  a  promise  is  a 
capital  defect  in  a  declaration,  not  to  be  supplied  by  intendment, 
and  renders  the  declaration   demurrable;  and  the  averment  of 
consideration  must  be  direct  and  explicit,  and  not  by  way  of  in- 
ducement merely.91     There  are  some  cases,  however,  in  which 

87.  Winston  v.  Francisco,  2  Wash.  187;  Sexton  v.  Holmes,  3  Munf. 
566;   Waid  v.   Dixon,  55   W.   Va.   191,  46   S.   E.  918;    Penn.   R.   Co.  v. 
Smith,  106  Va.  645,  56  S.  E.  567. 

88.  Cooke  v.  Simms,  2  Call.  39;  Woody  v.  Flournoy,  6  Munf.  506; 
Wheeling,   etc.,   Co.  v.  Wheeling,  etc.,  Co.,  62   W.  Va.   288,  57   S.   E. 
826. 

89.  Morgantown  Bank  v.  Foster,  35  W.  Va.  357,  13  S.  E.  996;  Waid 
v.  Dixon,  55  W.  Va.  191,  46  S.  E.  918;  Payne  v.  Grant,   81  Va.  164; 
Robinson   v.   Welty,   40  W.   Va.   385,  22   S.    E.   73;    Bannister  v.   Coal 
&   Coke    Co.,   63   W.    Va.   502,    61    S.    E.    338;    Wheeling,    etc.,    Co.   v. 
Wheeling,   etc.,   Co.,  supra. 

90.  4  Min.  Inst.  697;  Hogg's  PI.  &  Forms,  72,  73;  Stephen's  Plead- 
ing, §  82,  note;  Union  Stopper  Co.  v.  McGara,  66  W.  Va.  403,  66  S. 
E.  698;  Bannister  v.  Coal  &  Coke  Co.,  supra. 

91.  Southern    R.   Co.   v.   Willcox,   98   Va.   222,   35    S.    E.   355;    Penn. 
R.  Co.  7'.   Smith.   106  Va.   645,  56   S.   E.   567;   Hall  v.   Smith,  3   Munf 


144  ASSUMPSIT  §    88 

by  reason  of  the  peculiar  nature  of  an  instrument  sued  on,  or 
by  statute,  no  consideration  need  be  averred  in  the  declaration. 
In  actions  founded  upon  bills  of  exchange,  promissory  notes, 
and  other  legal  liabilities  which  import  a  consideration,  the  dec- 
laration need  allege  no  consideration.92  And  it  is  provided  by 
statute  in  Virginia  that  an  action  of  assumpsit  may  be  maintained 
upon  any  note  or  writing  by  which  there  is  a  promise,  undertak- 
ing, or  obligation  to  pay  money,  if  the  same  be  signed  by  the 
party  to  be  charged  thereby  or  his  agent,  and  that  the  rule  as  to 
averment  and  proof  of  consideration  shall  be  the  same  as  in  an 
action  of  debt  thereon.93  Hence,  when,  upon  written  promises 
to  pay  money,  assumpsit  is  brought,  no  averment  of  consideration 
is,  in  Virginia,  necessary  in  the  declaration.94 

(3)  The  Breach. — Of  course,  the  declaration  must  show  that 
the  defendant  has  broken  his  contract.     There  is  no  difference 
in  the  rules  governing  the  allegations  of  the  breach  in  the  action 
of  covenant  and  those  which  obtain  in  assumpsit,95  and  it  will 
be  sufficient  to  refer  to  a  discussion  of  the  breach  in  the  chapter 
on  covenant,  without  here  repeating  what  is  there  said.96 

(4)  The  Damages. — The  object  of  this  action    being  to    re- 
cover damages,  they  should  always  be  stated  in  a  sum  sufficiently 

550;  Mosely  v.  Jones,  5  Munf.  23;  Jackson  v.  Jackson,  10  Leigh  467; 
Beverley  v.  Holmes,  4  Munf.  95;  Morgantown  Bank  v.  Foster,  35 
W.  Va.  357,  13  S.  E.  996.  The  averment,  in  a  declaration  against  a 
common  carrier,  that  the  defendant,  in  consideration  of  the  deliv- 
ery to  it  of  certain  goods,  issued  its  bill  of  lading,  by  which  it  "un- 
dertook, promised,  and  agreed"  to  carry  the  goods  to  their  destina- 
tion is  not  such  an  averment  of  consideration  as  is  necessary  in  as- 
sumpsit. Penn.  R.  Co.  v.  Smith,  supra.  See  C.  &  O.  Ry.  Co.  v. 
Stock,  104  Va.  97,  51  S.  E.  161,  where  the  court  quotes  Hutchinson 
on  Carriers  as  to  the  proper  mode  of  stating  a  consideration  in  ac- 
tions of  assumpsit  against  common  carriers. 

92.  Penn.   R.   Co.   v.   Smith,  supra;    Morgantown    Bank    v.    Foster, 
supra;  2  Encl.  PI.  &  Pr.  993. 

93.  Code,  §  2852.     In  debt  under  this  statute  no  consideration  need 
be  alleged.     See  ante,  §  72. 

94.  See   Penn.   R.  Co.  v.   Smith,  supra;   Graves'   Notes  on   Pleading 
(new)   20. 

95.  4    Min.    Inst.    706,    707. 

96.  See  ante,.$  78.     See  also  2  Encl.   PI.   &  Pr.  1001,  1002;   Hogg's 
PI.   &  Forms  81,  82. 


§    88         NATURE    AND    CONSTITUTION    OF    SPECIAL    COUNTS  145 

large  to  cover  any  possible  recovery,  but  are  usually  averred  in 
the  most  general  manner.  "A  general  allegation  at  the  end  of 
the  declaration,  that  the  plaintiffs  have  sustained  damages  by 
the  failure  of  the  defendant  to  perform  his  several  promises 
named  in  the  declaration,  to  a  certain  amount,  is  sufficient."97 
Damages  need  not  be  claimed  at  the  end  of  each  count  of  a  dec- 
laration in  assumpsit,  but  may  be  claimed  at  the  conclusion  of 
the  declaration  for  all  the  causes  of  action  in  the  several  counts ; 
and  it  is  both  unusual  and  unnecessary  to  insert  the  claim  for 
damages  at  the  end  of  each  count.98 

"It  is  said  that  the  omission  to  lay  damages  in  the  declaration 
is  cured  by  verdict  and  cannot  be  taken  advantage  of  by  a  mo- 
tion in  arrest  of  judgment,  but  the  Court  will  supply  the  omis- 
sion by  reference  to  the  writ,  or  the  declaration  may  be  amended 
by  an  insertion  of  the  plaintiff's  claim  where  the  court  has  ju- 
risdiction of  the  case."99 

Generally  a  plaintiff  cannot  recover  in  an  action  sounding  in 
damages  any  greater  amount  than  he  has  laid  in  his  declaration, 
and  if  the  verdict  is  for  a  larger  sum  than  is  claimed  in  the  dec- 
laration and  writ,  it  will  either  be  set  aside  and  a  new  trial 
awarded,1  or  the  plaintiff  may  remit  the  excess  and  take  judg- 
ment for  the  amount  claimed  in  the  writ  and  declaration,2  or, 
in  very  exceptional  cases,  the  trial  court  may  permit  the  plain- 
tiff to  amend  the  ad  damnum  clause  so  as  to  cover  the  amount 
of  the  verdict,3  but  the  last  mentioned  is  rarely  allowed.  If,  how- 
ever, no  damages  are  claimed  in  the  declaration,  in  an  action 
sounding  in  damages,  although  claimed  in  the  writ,  the  omission 
is  a  matter  of  substance  and  the  defect  is  neither  waived  nor 

97.  Hogg's  PI.   &  Forms,  85. 

98.  American  Bonding  Co.  v.  Milstead,  102  Va,  683,  47  S.  E.  853; 
Postlewaite  v.  Wise,  17  W.  Va.  1;  Hoffman  v.  Dickinson,  31  W.  Va. 
142,  6  S.  E.  53. 

99.  5   Encl.  PI.  &  Pr.  706,  707;  Craighill  v.   Page,  2  Hen.  &  Munf. 
446;  Diggs  v.  Norris,  3  Hen.  &  M.  268;  Stephens  v.  White,  2  Wash. 
203. 

1.  Cloud  v.  Campbell,  4  Munf.  214. 

2.  Lindell  v.  Monroe,  67  Mo.  619;  White  v.  Cannadee,  25  Ark.  41; 
5   Encl.  PI.   &  Pr.   715. 

3.  5  Encl.  PL  &  Pr.  716. 

—10 


146  ASSUMPSIT  §    88 

cured  by  the  verdict  where  a  demurrer  has  been  interposed,  but 
overruled.31  It  has  been  held  in  Virginia  that  while  greater 
damages  cannot  be  awarded  than  are  claimed  in  the  declaration, 
this  restriction  is  confined  to  the  principal  of  the  recovery  and 
does  not  affect  the  interest  which  may  be  allowed  thereon.4  It 
has  been  held  in  West  Virginia  that  if  the  trial  court  renders 
judgment  for  a  greater  amount  than  that  claimed  in  the  writ 
the  judgment  is  not  subject  to  review  unless  such  excess  is 
sufficient  to  give  the  appellate  court  jurisdiction.5 

(5)  The  Notice. — When  the  matter  alleged  in  the  declara- 
tion may  be  considered  as  lying  more  properly  in  the  knowledge 
of  the  plaintiff  than  of  the  defendant,  when  the  defendant  must 
have  notice  before  he  can  be  charged  with  any  default,  or  when 
the  defendant  could  not  perform  his  contract  without  receiving 
notice,  in  all  such  cases  there  must  be  a  special  notice  alleged.6 
Thus,  "The  averment  of  notice  is  especially  necessary  in  ac- 
tions on  dishonored  bills  and  checks  against  the  maker  or  drawer, 
and  on  protested  negotiable  notes,  and  on  other  negotiable  paper 
against  the  endorsers."7  In  a  declaration  on  a  collateral  prom- 
ise, the  plaintiff  should  aver  notice  to  the  guarantor,  of  the  per- 
formance of  the  act  contemplated  by  the  promise,  and,  perhaps, 
of  a  failure  to  pay  by  the  person  in  whose  favor  the  undertaking 
was  made,  because  the  defendant  could  not  know  otherwise  ei- 
ther whether  it  was  his  duty  to  pay,  nor,  if  so,  what  to  pay.8 
But  where  notice  to  a  defendant  of  any  fact  is  not  necessary  to 
fix  the  alleged  liability  on  him,  it  need  not  be  averred  in  stating 

3a.  McGlamory  v.  Jackson  (W.  Va.),  68  S.  E.  105. 

4.  Georgia   Home   Ins.   Co.  v.   Gould,  95   Va.   751,   30   S.   E.   366. 

5.  Giboney  v.  Cooper,  57  W.  Va.  74,  49  S.  E.  939. 

6.  2  Encl.  PI.  &  Pr.  1000;  Hogg's  PI.  &  Forms,  81;  Austin  v.  Rich- 
ardson, 3  Call  201.     In  the  last-named  case,  Judge  Lyons  said:  "The 
difference  is  where  the  party  cannot  perform  the  thing  without  re- 
ceiving notice  from  the  person  to  whom  it  is  to  be  performed,  and 
where  he  may  perform   it  without  such   notice   from  the  other   side. 
In  the  first  case  a  special  notice  and  demand  is  necessary,  but  not 
in  the  other." 

7.  1   Barton's   Law  Practice  319;   Security   Loan   Co.   v.   Fields,   110 
Va.   827,  67  S.   E.  342. 

8.  Pasteur  v.  Parker,  3  Rand.  458. 


§    88         NATURE    AND    CONSTITUTION    OF    SPECIAL    COUNTS  147 

the  case.9     Where  a  notice  is  necessary,  the  failure  of  the  de- 
claration to  allege  it  is  fatal  on  demurrer.10 

(6)  The  Demand  or  Request. — In  every  case  where  a  formal 
demand  or  request  is  essential  to  the  cause  of  action,  the  dec- 
laration must  state  such  demand  or  request.11     The  object  of 
such  demand  is  to  enable  the  defendant  to  perform  his  contract 
without  a  suit,12  and  wherever  the  terms  of  the  contract  require 
the  plaintiff  to  request  the  defendant  to  perform  his  contract, 
such  request  or  demand  must  be  averred.13     But  no  demand  or 
request  need  be  averred  where  the  action  is  simply  one  to  en- 
force a  precedent  indebtedness  and  the  obligation  to  pay  is  com- 
plete.14    Where  a  demand  is  necessary  the  general    averment 
"although  often  requested,"  etc.,  will  not  do;  the  time  and  place 
of  the  demand,  and  by    whom    and  to  whom    made    must    be 
stated.15 

(7)  N on-Pay ment. — Wherever   an   action   is   brought   for   a 
debt,  the  declaration  must  allege  the  non-payment  of  the  sum 
of  money  claimed,  at  any  time  or  to  any    person    to    whom    it 
might  legally  have  been  paid.     But  no  formal  allegation  of  non- 
payment is  required,  and  any  averment  of  nonpayment  is  suffi- 
cient unless  it  be  so  defective  that  the  court  cannot  give  judg- 
ment on  the  verdict  according  to  the  very  right  of  the  case.16 
Thus  in  Cobbs  v.  Fountaine17  a  declaration  which  charged  only 
that   the   defendant    "hath    and    does    refuse   to   pay,"    without 
alleging  that  he  had  not  paid,  was  held  good  upon  general  de- 
murrer.    And  in  no  case  where  the  action  is  not  based    upon 
a  promise  or  undertaking  to  pay  money  is  an  allegation  of  non- 

9.  Union   Stopper   Co.  v.   McGara,    66   W.   Va.   403,   66   S.    E.   698; 
Hogg's  PI.   &  Forms,  81;  2  Tucker's  Com.   144. 

10.  2  Encl.  PL   &  Pr.  1000,  note;   Hogg's  PL   &  Forms  81. 

11.  2   Encl.   PL   &   Pr.   1001. 

12.  Hogg's  PL  &  Forms  79.     For  instances  where  demand  is  nec- 
essary and  should  be  averred,  see  idem,  78-80;  1  Barton's  Law  Prac- 
tice 320. 

13.  2  Encl.  PL  &  Pr.  1001,  note. 

14.  Idem,  ubi  supra;  Hogg's  PL  &  Forms  80. 

15.  Hogg's   PL   &   Forms   80. 

16.  Hogg's  PL  &  Forms  83,  84. 

17.  3  Rand.  484. 


148  ASSUMPSIT  §    89 

payment   necessary.      Thus    the    non-payment    of    damages    for 
not  performing  an  act  contracted  for  need  not  be  averred.18 

§   89.    Account  to  be  filed  with  the  declaration. 

It  is  provided  by  §  3248  of  the  Code  of  Virginia  that:  "In 
every  action  of  assumpsit  the  plaintiff  shall  file  with  his  dec- 
laration an  account  stating  distinctly  the  several  items  of  his 
claim,  unless  it  be  plainly  described  in  the  declaration."  The 
object  of  such  account  is  to  give  a  fuller  and  more  particular 
specification  of  the  matter  contained  in  the  declaration,  and 
to  give  the  defendant  full  notice  of  any  claim  which  might 
be  insisted  on  before  the  jury  under  general  counts  in  the 
declaration.19  Where  a  sufficient  account  is  not  filed,  the  proper 
practice  is  to  apply  to  the  court  to  require  the  plaintiff  to 
file  an  amended  and  sufficient  account  of  his  claim;  and,  if  he 
fails  to  do  so,  to  move  the  court  to  exclude  evidence  of  any 
matter  not  sufficiently  described  to  give  the  defendant  notice 
of  its  nature  and  character.20  The  account  is  to  be  read  in 
connection  with  the  declaration,  but  is  not  a  part  of  the  decla- 
ration and  is  not  the  subject  of  a  demurrer,  however  defective 
it  be.21  It  cannot  perform  the  function  of  a  count  in  the 
declaration,  and  where  there  is  no  count  in  the  declaration 
appropriate  to  the  account  filed  therewith  the  latter  answers  no 
purpose.  It  cannot  specify  something  different  from  what  is 
in  the  declaration,  and  the  account  alone  would  not  admit 
the  evidence.22 

18.  Hogg's  PI.   &  Forms  84;   Davisson  v.   Ford,  23  W.  Va.  618. 

19.  Geo.  Campbell  Co.  v.  Angus,  91  Va.  438,  22  S.  E.  167;  Moore  v. 
Mauro,  4  Rand.  488. 

20.  Geo.  Campbell  Co.  v.  Angus,  supra. 

21.  Geo.  Campbell  Co.  v.  Angus,  supra;  Booker  v.  Donohoe,  95  Va.  359, 
28    S.    E.   584.     These    two    cases   overrule   Wright  v.    Smith,   81    Va. 
777.     The  rule  is  the  same  in  West  Virginia  under  a  similar  statute 
Sandusky  v.   Gas   Co.,  63   W.  Va.  260,   59   S.   E.   1082.     But  a  bill   of 
particulars  under  §  3249  of  the  Code  (and  it  seems  an  account  under 
§   3248  thereof)     may    be    considered    as    a    part   of  the   declaration 
where  the  parties  agree  in  writing  that  the   case  made  by  the   dec- 
laration   may    be    supplemented    by    the    bill   of  particulars    (or  ac- 
count).    King    v.  N.  &  W.  R.  Co.,  99  Va.  625,  39  S.  E.  701. 

22.  Sandusky  v.  Gas   Co.,  supra. 


§    89  ACCOUNT   TO   BE   FILED   WITH    THE  DECLARATION  149 

Of  course,  where  the  claim  is  plainly  described  in  the  decla- 
ration, the  statute  does  not  apply  and  no  account  need  be 
filed.  But  it  is  obvious  that  in  nearly  all  cases  where  the 
declaration  contains  the  common  counts  the  account  is  neces- 
sary, as  these  are  so  indefinite  and  general  in  their  nature.23 
[n  Federation  Window  Glass  Co.  v.  Cameron  Glass  Co.,24  it 
held  that  the  account  required  to  be  filed  with  the  declara- 
tion under  Code  of  West  Virginia,  1899,  ch.  125,  §  11  (sub- 
stantially the  same  as  §  3248,  Code  of  Virginia),  need  not 
iccessarily  be  filed  at  the  time  the  declaration  is  filed,  but 
lay  be  filed  at  a  subsequent  time. 

23.  Hogg's  PI.  &  Forms  87.  An  account  filed  with  a  declaration 
in  assumpsit  for  goods  sold,  charging  goods  sold  "per  account  ren- 
lered,"  with  proof  that  the  account  was  rendered  is  sufficient.  And 
;here  the  insimul  computassent  count  (account  stated)  is  the  one  re- 
lied on  in  the  case  there  is  no  need  to  file  any  account  as  this  count 

itself  gives  the  defendant  sufficient  notice.  In  such  case,  how- 
ever, the  plaintiff  could  not  prove  any  of  the  particulars  of  the  ac- 
:ount  which  was  stated.  Fitch  v.  Leitch,  11  Leigh  492;  Robinson  v. 
Jurks,  12  Leigh  387.  Where  the  date  of  the  account  is  stated  in 
the  declaration  with  which  it  was  filed,  and  the  account  was  pre- 
sented as  a  debt  due  at  the  institution  of  the  suit,  and  verdict  was 
rendered  accordingly,  it  was  no  error  that  the  account  was  not 
lated.  Kenefick  v.  Caulfield,  88  Va.  122,  13  S.  E.  348.  It  was  held 

Moore  v.  Mauro,  4  Rand.  488,  (under  1  Rev.  Code  1819,  p.  510, 
86,  the  language  of  which  was  somewhat  different  from  §  3248  as 
it  now  reads)  that  an  item  in  an  account  reading  "merchandise  per 
bill,  three  months  due,  10th  of  July,  1819,  $480.60"  was  a  sufficient 
compliance  with  the  statute,  and  the  plaintiff  was  allowed  to  prove 
the  particulars  of  the  bill,  the  court  stating  that  the  character  of  it 
was  rendered  sufficiently  plain  by  the  statement  above  quoted. 
While  matters  of  evidence  are  not  required  to  be  stated  in  the  ac- 
count (Geo.  Campbell  Co.  v.  Angus,  supra),  yet  where  the  declaration 
does  not  plainly  describe  the  items,  and  the  account  filed  theiewith 
merely  mentions  the  sums  paid  without  giving  any  information 
about  them,  the  account  is  insufficient.  Johnson  v.  Fry,  88  Va.  695, 
12  S.  E.  973.  So,  on  a  count  for  money  had  and  received,  where  the 
account  filed  with  the  declaration  was  simply  "to  plaintiff  as  admr. 
for  money  received,  $300.00,"  the  count  and  the  account  filed  were 
held  insufficient  to  admit  proof  of  an  admission  by  the  defendant 
that  he  had  received  from  a  third  person  a  certain  sum  due  the 
plaintiffs  intestate.  Minor  v.  Minor,  8  Gratt.  1. 

24.  58  W.  Va.  477,  52    S.  E.  518. 


150  ASSUMPSIT  §§    90-91 

§    90.    Avoiding1  writ  of  inquiry. 

It  is  provided  by  §  3285  of  the  Code  of  Virginia  that  there 
need  be  no  writ  of  inquiry  of  damages  "In  any  action  upon 
an  account  wherein  the  plaintiff  shall  serve  the  defendant  at 
the  same  time  and  in  the  same  manner  that  the  process  or 
summons  to  commence  the  suit  or  action  is  served,  with  a 
copy  (certified  by  the  clerk  of  the  court  in  which  the  suit 
or  action  is  brought)  of  the  account  on  which  the  suit  or 
action  is  brought,  stating  distinctly  the  several  items  of  his 
claim,  and  the  aggregate  amount  thereof,  and  the  time  from 
which  he  claims  interest  thereon,  and  the  credits,  if  any,  to 
which  the  defendant  may  be  entitled.  But  this  section  shall 
not  apply  to  any  action  on  an  account  in  which  the  process  is 
served  by  publication."  In  an  action  of  assumpsit,  if  the  plain- 
tiff proceeds  under  the  above  statute,  the  copy  of  the  account 
sued  upon,  served  on  the  defendant,  must  be  intelligible  to 
him  and  inform  him  of  the  precise  nature  of  the  claim  of 
the  plaintiff  and  its  extent.25 

The  above  procedure  is  seldom  adopted  in  practice  for  the 
reason  that  the  statute  quoted  is  in  large  measure  superseded 
by  §  3286  of  the  Code  of  Virginia  (discussed  in  §  91,  post} 
under  which  the  plaintiff  may  not  only  avoid  the  writ  of 
inquiry  but  put  the  defendant  to  the  necessity  of  making  a 
sworn  defence.26 

§   91.    Avoiding  writ  of  inquiry  and  putting  defendant  to 
sworn  plea. 

It  is  provided  by  §  3286  of  the  Code  of  Virginia  that:  "In 
any  action  of  assumpsit  on  a  contract,  express  or  implied,  for 
the  payment  of  money  (except  where  the  process  to  answer 
the  action  has  been  served  by  publication),  if  the  plaintiff  file 
with  his  declaration  an  affidavit  made  by  himself  or  his  agent, 
stating  therein,  to  the  best  of  the  affiant's  belief  the  amount 
of  the  plaintiff's  claim,  that  such  amount  is  justly  due,  and 
the  time  from  which  the  plaintiff  claims  interest,  no  plea  in 
bar  shall  be  received  in  the  case,  either  at  rules  or  in  court, 
unless  the  defendant  file  with  his  plea  the  affidavit  of  himself 

25.  Burwell  v.  Burgess,  32  Gratt.  472. 

26.  See  Graves'  Notes  on  Pleading  (new)  97. 


§    91  AVOIDING   WRIT   OF   INQUIRY  151 

or  his  agent,  that  the  plaintiff  is  not  entitled,  as  the  affiant 
verily  believes,  to  recover  anything  from  the  defendant  on  such 
claim,  or  stating  a  sum  certain  less  than  that  set  forth  in  the 
affidavit  filed  by  the  plaintiff,  which  as  the  affiant  verily  be- 
lieves, is  all  that  the  plaintiff  is  entitled  to  recover  from  the 
defendant  on  such  claim.  If  such  plea  and  affidavit  be  not 
filed  by  the  defendant,  there  shall  be  no  inquiry  of  damages, 
but  judgment  shall  be  for  the  plaintiff  for  the  amount  claimed 
in  the  affidavit  filed  with  his  declaration.  If  such  plea  and 
affidavit  be  filed,  and  the  affidavit  admits  that  the  plaintiff  is 
entitled  to  recover  from  the  defendant  a  sum  certain  less  than 
that  stated  in  the  affidavit  filed  by  the  plaintiff,  judgment  may 
be  taken  by  the  plaintiff  for  the  sum  so  admitted  to  be  due, 
and  the  case  be  tried  as  to  the  residue."27 

The  effect  of  the  above  statute  is  twofold.  It  prevents  mere 
formal  pleas,  such  as  the  general  issue,  being  filed  simply  to 
delay  the  hearing,  where  there  is  no  real  defense,  and  it  makes 
it  possible  for  the  plaintiff  to  avoid  a  writ  of  inquiry  when 
his  action  is  upon  a  claim  not  evidenced  by  writing.28  The 
statute's  "obvious  purpose  is  to  prevent  delay,  and,  with  that 
object  in  view,  to  simplify  and  shorten  the  proceedings."29 

Particular  care  should  be  taken  when  the  affidavit,  under  the 
above  statute,  is  made  by  an  agent  of  either  the  plaintiff  or 
the  defendant  that  the  affiant  be  described  in  the  affidavit  as 
agent,  and  not  as  secretary  and  treasurer,  bookkeeper,  vice 
president,  director,  etc.,  as  it  has  been  held  in  several  recent 
cases  that  such  terms  do  not  ex  vi  termini  import  agency,  what- 
ever may  be  the  true  status  of  the  affiant,  and  that  under 
statutes  requiring  affidavits  by  "agents,"  the  affiant  must  be 
described  as  agent.30  And  such  affidavit  should  state  "the  time 

27.  For   form    of   affidavit   and    counter   affidavit   under   the    above 
statute  see  annotations  thereto  in  Pollard's  Code  of  Virginia. 

28.  Graves'    Notes    on    Pleading    (new)    98-100;    Judge    Burk's    Ad- 
dress   (Rep.  Va.   State   Bar  Ass'n,   1891,  p.  130). 

29.  Gregg  v.  Dalsheimer,  88  Va.  508,  13  S.  E.  993;  Jackson  v.  Dot- 
son,  110  Va.  46,  65  S.   E.  484. 

30.  Merriman    Co.   v.   Thomas,    103    Va.    24,    48    S.    E.   490,    ("book- 
keeper"); Taylor  v.  S.  M.  Tob.  Co.,  107  Va.  787,  60  S.  E.  132   ("sec- 
retary and   treasurer");    Damron   v.    Bank,   112  Va.  — ,   72   S.    E.   153 
("vice   president,"   "director"). 


152  ASSUMPSIT  §'   91 

from  which  the  plaintiff  claims  interest."31  As  to  the  manner 
of  pleading  under  the  above  statute  it  has  been  held  that,  as 
pleas  of  the  general  issue  are  not  required  to  be  in  writing, 
and,  in  practice,  seldom  are  written  out,  it  is  a  sufficient  com- 
pliance with  the  statute  under  discussion  for  the  defendant 
orally  to  direct  the  clerk  to  enter  a  plea  of  non  assumpsit  at 
the  time  of  filing  his  written  affidavit;  it  not  being  necessary 
that  the  plea  itself  should  be  in  writing.32  An  affidavit  accom- 
panying a  plea  of  non  assumpsit  "that  the  matters  stated  in 
the  annexed  plea  are  true"  is  a  substantial  compliance  with  the 
provisions  of  the  statute,  as  the  plea  of  non  assumpsit  puts 
in  issue  the  entire  claim  of  the  plaintiff,  and  the  affidavit  states 
that  the  plea  is  true.33  The  affidavit  is  no  part  of  the  plea, 
and  a  demurrer  to  an  unverified  plea  does  not  bring  to  the  at- 
tention of  the  court  the  lack  of  the  affidavit.  The  plaintiff 
should  object  to  the  reception  of  the  plea  when  tendered  because 
not  so  verified,  or,  if  the  plea  has  been  filed,  should  move  to 
strike  it  out.34 

A  plea  in  bar  unaccompanied  by  affidavit  (when  the  plaintiff 
has  complied  with  the  provisions  of  the  above  statute)  is,  in 
legal  effect  a  nullity.  The  effect  is  the  same  as  though  no 
plea  were  entered,  and,  if  such  plea  be  filed  at  rules,  the  clerk 
should  disregard  it,  and  enter  a  judgment  at  rules  for  the 
plaintiff.35  In  such  case  the  clerk,  at  the  rules  following  the 
filing  of  the  declaration,  should  place  the  case  on  the  office 
judgment  docket  for  the  next  succeeding  term  of  his  court,  to 
become  final  along  with  other  office  judgments  at  the  time  re- 
quired by  law  or  unless  defendant  files  a  plea  in  bar  accom- 
panied by  affidavit  as  required  by  the  statute.36  If,  through 
error,  the  case  is  placed  on  the  writ  of  inquiry  docket,  and  un- 
sworn pleas  be  filed,  and  the  case  continued  to  another  term, 

31.  Merriman  v.  Thomas,  supra. 

32.  Moreland  v.  Moreland,  108  Va.  93,  60  S.  E.  730. 

33.  Jackson  v.   Dotson,  supra. 

34.  Lewis  v.   Hicks,  96  Va.  91,  30  S.  E.  466;  Gregg  v.  Dalsheimer, 
supra. 

35.  Gregg  v.   Dalsheimer,  supra. 

36.  Price  v.  Marks,  103  Va.  18,  48  S.  E.  499;  Gring  v.  Lake  Drum- 
mond  Canal  &  Water  Co.,  110  Va.  754,  67  S.  E.  360. 


§    91  AVOIDING  WRIT  OF  INQUIRY  153 

and  the  plaintiff  then  moves  to  strike  the  pleas  out  because 
not  sworn  to,  but  the  trial  court  overrules  the  motion  and  com- 
pels a  trial  on  the  pleas,  which  results  in  a  verdict  and  judg- 
ment for  the  defendant,  the  Court  of  Appeals  will,  on  a  writ 
of  error  awarded  to  the  plaintiff,  set  aside  the  verdict  and 
judgment,  strike  out  the  pleas,  and  enter  final  judgment  for 
the  plaintiff.37  If  the  defendant  does 'not  plead  at  all  at  the 
next  term  following  the  entry  of  the  office  judgment,  but  is 
permitted  to  plead  at  a  subsequent  term  the  judgment  of  the 
lower  court  allowing  the  defendant  to  enter  such  plea  will  be 
reversed  and  the  Court  of  Appeals  will  render  final  judgment 
for  the  plaintiff.38 

The  provision  in  the  statute  that  the  defendant's  plea  shall 
be  verified  by  affidavit  is  solely  for  the  benefit  of  the  plaintiff, 
who  may  waive  it,  or  by  his  conduct  be  estopped  from  assert- 
ing it.39  The  plaintiff  does  waive  his  right  to  object  to  an 
unverified  plea  if  he  takes  issue,  either  in  law  or  in  fact,  on 
such  plea,  without  objection  to  it  for  the  lack  of  the  affidavit,-40 
or  where  he  not  only  makes  no  objection  when  the  plea  is 
tendered  without  a  sufficient  affidavit,  but,  though  present  by 
counsel,  assents  to,  or  accepts  without  objection,  a  continuance 
of  the  case  until  the  next  term  of  the  court,  "with  leave  to 
the  defendant  to  file  within  fifteen  days  his  grounds  of  de- 
fense."41 But  where  pleas  in  bar  have  been  filed  unaccom- 
panied by  affidavit,  on  which  the  plaintiff  takes  issue  without 

37.  Price  v.   Marks,  supra. 

38.  Gring  v.  Lake  Drummond  Canal  &  Water  Co.,  supra. 

39.  Lewis  v.   Hicks,  supra;   Spencer  v.   Field,   97   Va.   38,   33   S.   E. 
380;  Price  v.  Marks,  supra;  Jackson  v.  Dotson,  supra. 

40.  Lewis  v.   Hicks,   supra. 

41.  Jackson  v.  Dotson,  110  Va.  46,  65  S.  E.  484.     The  court  said  in 
this  case  that  there  was  nothing  in  its  holding  in  conflict  with  Price 
v.  Marks,  supra.     In  the  Dotson  case  the  record  showed  that  plain- 
tiff's  counsel   was   present  when   the   order   of   continuance   was   en- 
tered, and  either  consented  or  made  no  objection  thereto;  whereas 
in  the  Marks  case  it  appears   that  the  only  continuance  had  before 
objection  to  the  pleas  was  one  without  an  order  of  continuance,  and 
the  opinion  does  not  indicate  that  counsel  for  the  plaintiff  was  pres- 
ent when  the  defective  pleas  were  filed,  or  in  any  way  consented  to 
the   continuance. 


154  ASSUMPSIT  §    92 

objection,  and  such  pleas  are  withdrawn  and  new  pleas  are  ten- 
dered by  the  defendant,  the  plaintiff  may  insist  on  the  lack 
of  an  affidavit  as  a  valid  objection  to  such  new  pleas;  his  con- 
duct as  to  the  former  pleas  not  constituting  a  waiver  as  to 
the  new  pleas,  and  the  latter  being  subject  to  all  proper  ob- 
jections.42 The  mere  taking  of  depositions  in  the  case,  it  not 
having  been  set  for  hearing,  cannot  be  considered  as  a  waiver  of 
the  plaintiff's  right  to  require  sworn  pleas.43 

§   92.    Mis  joinder  of  tort  and  assumpsit. 

It  is  a  general  principle  of  pleading  that  causes  of  action 
in  tort  cannot  be  joined  in  the  same  declaration  with  causes 
arising  ex  contractu.  Hence  counts  in  assumpsit  cannot  be 
joined  in  the  same  declaration  with  counts  in  trespass,  trespass 
on  the  case,  trover,  detinue,  or  other  tort  actions.  "The  gen- 
eral doctrine  is  that  demands  may  be  joined  when  they  are 
of  the  same  nature,  and  the  same  judgment  is  to  be  given  in 
all,  notwithstanding  the  pleas  may  be  different."**  This  ex- 
cludes the  joining  of  tort  and  assumpsit,  for  they  are  not  of 
the  same  nature.  And  it  makes  no  difference  that  each  count 
may  be  perfect  in  itself;  if  there  is  a  misjoinder  the  declara- 
tion is  bad  on  general  demurrer,  though  not  on  motion  in 
arrest  of  judgment,  or  writ  or  error,  if  no  demurrer  has  been 
interposed*5  That  such  misjoinder  is  fatal  is  illustrated  by  a 
number  of  Virginia  cases.46 

This  principle  of  pleading  is  an  important  one  to  remember, 
not  only  to  avoid  a  deliberate  misjoinder,  but  also  in  order  to 

42.  Spencer  v.  Field,  supra. 

43.  Price   v.    Marks,   supra. 

44.  4    Min.    Inst.     446,    447;    1    Barton's     Law     Practice     303,     304; 
Hogg's   PI.    &   Forms,    138-140.      Nor   can    different  species   of   action 
be  so  joined  though  all  are  ex  contractu.     Thus  assumpsit  cannot  be 
joined    with    debt,    account,    or    (at    common    law)    covenant.     4  Min. 
Inst.  447. 

45.  4  Min.   Inst.  448;    Gary  v.   Abingdon   Pub.   Co.,   94  Va.   775,   27 
S.  E.  595;  Norfolk  &  W.  R.  Co.  v.  Wysor,  82  Va.  250. 

46.  See  Spencer  v.  Pilcher,  8  Leigh  584;   Southern   Express   Co.  v. 
McVeigh,  20  Gratt.  264;  Creel  v.  Brown,  1  Rob.  265;  Gary  v.  Abing- 
don Pub.  Co.,  supra;  Grubb  v.  Burford,  98  Va.  553,  37  S.  E.  4;  Penn. 
R.  Co.  v.  Smith,  106  Va.  645,   56  S.   E.  567. 


§    92  MISJOINDER    OF    TORT    AND    ASSUMPSIT  155 

make  sure  that  all  of  the  counts  in  what  the  pleader  means  for 
a  declaration  in  assumpsit  are  actually  contract  and  not  tort 
counts.  For  it  is  immaterial  that  the  pleader  may  denominate 
his  action  assumpsit;  if  the  court  upon  an  examination,  on 
demurrer,  of  the  actual  averments  of  the  declaration  decides 
that  one  count  thereof  does  not  measure  up  to  the  require- 
ments of  a  special  count  in  assumpsit,  it  will  frequently  be 
held  to  be  in  tort,  and  the  declaration  will  be  bad. 

The  error  most  frequently  committed  is  a  failure  to  properly 
allege  a  promise  and  the  consideration  therefor.  Thus,  the 
averment  in  a  declaration  against  a  common  carrier,  that  the 
defendant,  in  consideration  of  the  delivery  to  it  of  certain  goods, 
issued  its  bill  of  lading,  by  which  it  "undertook,  promised  and 
agreed"  to  carry  the  goods  to  their  destination  is  not  such 
an  averment  of  consideration  as  is  necessary  in  assumpsit,  and 
renders  the  count  one  in  tort  and  not  in  assumpsit,  and  this 
is  so  though  it  is  apparent  that  the  plaintiff  meant  the  count 
to  be  in  assumpsit  and  not  in  tort.47  To  avoid  this  error 
the  rules  set  forth  in  a  preceding  section  as  to  the  essential 
averments  in  special  assumpsit  should  be  constantly  borne  in 
mind.  In  discussing  the  subject  certain  general  principles  of 
guidance  have  been  laid  down  by  our  Court  of  Appeals.  Thus 
Judge  Tucker  said  that  to  constitute  a  count  in  assumpsit  "there 
must  be  an  agreement  laid  between  the  parties,  or  a  promise 
from  the  defendant  to  the  plaintiff  for  a  consideration."48  And, 
more  recently,  Judge  Cardwell  said :  "In  an  action  in  assumpsit 
the  promise  is  the  legal  cause  of  action,  and  where  a  count 
states  that  the  defendant  agreed  or  undertook,  these  words 
import  a  promise,  and  the  count,  therefore,  is  in  form  as- 
sumpsit."49 Where  a  count  in  a  declaration  is  in  assumpsit, 

47.  Penn.   R.  Co.  v.   Smith,  supra.     This   difficulty  frequently  arises 
in  declarations  against  common  carriers  for  loss  of  goods,   etc.,  as. 
in  such  cases,  the  allegations  in  the  tort  forms  of  action  and  in  those 
ex  contractu  bear  to   each   other  great   similarity.     As   to   the   proper 
mode  of  stating  a  consideration  in  actions  of  assumpsit  against  com- 
mon carriers,  see  C.  &  O.  Ry.  Co.  v.  Stock,  104  Va.  97,  51  S.  E.  161. 

48.  Spencer  v.  Pilcher,  8  Leigh  584. 

49.  American    Bonding,    etc.,    Co.    v.    Milstead,    102    Va.    683,    47    S 
E.  853. 


156  ASSUMPSIT  §    93 

the  mere  fact  that  it  complains  of  defendant  "of  a  plea  of  tres- 
pass in  the  case,"  instead  of  trespass  on  the  case  in  assumpsit, 
cannot  change  the  form  of  action.  It  is  still  assumpsit.50 

§   93.    Non  assumpsit. 

The  general  issue  in  assumpsit  is  non  assumpsit.5'1  This  is 
one  of  the  broad  general  issues,  and  in  Va.  Fire  &  Marine 
Ins.  Co.  v.  Buck,52  the  court  said:  "The  fact  is  undeniable  that 
for  more  than  a  century  past  there  has  been  admitted,  under 
the  plea  of  non  assumpsit,  in  all  actions  of  assumpsit,  whether 
founded  on  an  implied  or  express  promise,  any  matter  of  de- 
fence whatever  (the  same  as  in  the  case  of  nil  debet)  which 
tends  to  deny  his  (the  defendant's)  liability  to  the  plaintiff's 
demands.  *  *  *  Under  the  plea  of  nil  debet  the  defendant 
may  prove  at  the  trial  coverture  when  the  promise  was  made, 
lunacy,  duress,  infancy,  release,  arbitration,  and  accord  and 
satisfaction,  payment,  a  want  of  consideration  for  the  promise, 
failure  or  fraud  in  the  consideration,  and,  in  short,  anything 
which  shows  there  is  no  existing  debt  due.  The  statute  of 
limitations,  bankruptcy,  and  tender  are  believed  to  be  the  only 
defences  which  may  not  be  proved  under  this  plea,  and  they 
are  excepted  because  they  do  not  contest  that  the  debt  is  owing, 
but  insist  only  that  no  action  can  be  maintained  for  it."53 

50.  Gray  v.  Kemp,  88  Va.  201,  16  S.  E.  225. 

51.  The   form   of  the  plea,   omitting  the   entitlements,   as   given   in 
4    Min.    Inst.    773,    is    as    follows:      "And   the    said    defendant,    by   his 
attorney,  comes  and  says,  that  he  did  not  undertake  or  promise  in 
manner  and  form  as  the  said  plaintiff  hath  above  complained.     And 
of  this  the  said  defendant  puts  himself  upon  the  country."     A  plea 
of  "not  guilty"  in  an  action  of  assumpsit  though  an  improper  plea, 
and  subject  to  demurrer,  presents  a  substantial  issue,  and  such  mis- 
pleading and  misjoinder  of  issue  thereon  will,  after  verdict,  be  cured 
by  the  statute  of  jeofails.     Bannister  v.  Coal  &  Coke  Co.,  63  W.  Va. 
502,  61  S.  E.  338;  Gray  v.  Kemp,  88  Va.  201,  16  S:  E.  225;  2  Tucker's 
Com.  160. 

52.  88   Va.   517,   13   S.   E.   973. 

53.  See   also   Morgantown   Bank  v.   Foster,   35   W.   Va.   357,   13   S. 
E.  996;  4  Min.  Inst.  770,  773-775;  1   Barton's  Law  Practice  500,  501; 
2    Tucker's    Com.    160;    Hogg's    PI.    &    Forms     176-178;     First    Na- 
tional  Bank  v.  Kimberlands,  16  W.  Va.  555.     "Under  it  the  defend- 


§  94  SPECIAL  PLEAS  157 

Thus,  in  an  action  of  assumpsit  on  a  fire  insurance  policy, 
the  defendant  may,  under  the  plea  of  non  assumpsit  show  a 
breach  of  the  conditions  of  the  policy  avoiding  it;54  and  in 
an  action  of  assumpsit  to  recover  a  sum  of  money  in  gold 
which  had  been  delivered  by  the  plaintiff  to  the  defendant  for 
safe-keeping,  the  defendant  was  allowed  to  show  under  non 
assumpsit  that  he  had  been  robbed  of  it.55  This  general  issue 
is  a  denial  that  covers  the  whole  declaration  and  puts  the 
plaintiff  to  the  proof  of  every  material  fact.56  The  plea  is  not 
required  to  be  in  writing,  and,  in  practice,  is  seldom  written 
out;  the  defendant's  attorney  simply  giving  the  clerk  oral  direc- 
tion to  enter  the  plea  of  non  assumpsit.51  The  general  issue 
of  nil  debet  is  identical  in  its  scope  and  effect  with  that  of 
non  assumpsit,58  and,  as  the  various  defences  proper  to  be  made 
under  the  former  have  been  fully  discussed  in  the 
chapter  on  the  action  of  Debt,  and  nearly  the  whole  of  such 
discussion  is  equally  applicable  to  non  assumpsit,  it  would  be 
useless  to  repeat  here  the  observations  there  made.  The  reader 
is  referred  to  that  chapter  for  a  treatment  of  much  that  is 
pertinent  to  this  section.59 

§   94.    Special  pleas. 

Any  discussion  of  special  pleas  in  assumpsit,  must,  by  reason 
of  the  great  latitude  allowed  in  the  defences  under  the  gen- 
eral issue  of  non  assumpsit,  resolve  itself  into  an  effort  rather 

ant  is  generally  entitled  to  give  evidence  of  anything  which  shows 
that,  ex  cequo  et  bono,  the  plaintiff  ought  not  to  recover."  2  Encl.  Pi. 
&  Pr.  1029. 

54.  Rochester  Ins.  Co.  v.  M.  S.  Ass'n,  107  Va.  701,  60  S.  E    93. 

55.  Danville  Bank  v.  Waddill,  31  Gratt.  469. 

56.  Morgantown  Bank  v.  Foster,  supra;  Graves'  Notes  on  Pleading 
(new)   99-100;  1   Barton's  Law  Practice  500. 

57.  Moreland  v.  Moreland,   108  Va.  93,  60   S.   E.  730. 

58.  Graves'  Notes  on  Pleading  (old)  81. 

59.  See  ante,  §  73,  and  note  particularly  the  great  utility  of  §  3249 
of  the  Code  of  Virginia,  giving  to  the  plaintiff  the  right  to  call  for 
the  grounds  of  defence,  in  preventing  surprise  under  the  broad  gen- 
eral issues.     For  a  treatment  of  the  scope  of  non  assumpsit,  and  its 
applicability,  when  the  action  of  assumpsit  is  brought  on  a  sealed  in- 
strument (under  §  3246a  of  the  Code  of  Virginia)   see  ante,  §  82. 


158  ASSUMPSIT  §    94 

to  particularize  those  defences  which  may  be  the  subject  of 
special  pleas,  than  to  enumerate  what  must  be  pleaded  specially. 
As  we  have  seen,  bankruptcy,  tender  and  the  statute  of  limi- 
tations are  the  only  defences  which  must  be  specially  pleaded.60 
The  rule  is  that  every  defence  which  amounts  to  the  general 
issue  must  be  shown  under  the  general  issue,  and  cannot  be 
the  subject  of  a  special  plea.  But  defences  which  are  simply 
provable  under  the  general  issue  do  not  of  necessity  amount 
thereto;  and,  if  such  defences  do  not  amount  to  the  general 
issue  they  may  be  pleaded  separately,  subject  to  the  discretion  of 
the  trial  court,  even  though  they  could  have  been  availed  of 
under  the  general  issue.61  Judge  Phlegar  says  of  such  pleas : 
"Unless  some  improper  advantage  is  sought  to  be  obtained  by 
filing  them,  the  plaintiff  is  usually  benefited  rather  than  in- 
jured by  special  pleas  which  give  him  full  and  specific  notice 
of  the  defences."62 

The  safer  manner  of  making  objection  to  such  special  pleas 
is,  not  to  demur,  but  to  move  to  reject  them  when  offered,  or  tc 
strike  them  out  when  they  have  been  entered  on  the  record.03 

60.  See  ante,  §  93.  As  a  general  rule  all  matters  of  defence  whict 
arise  after  the  action  is  brought  must  be  the  subject  of  special  pleas 
and  are  not  provable  under  the  general  issue.  Hogg's  PI.  &  Forms 
193.  As  to  when  a  plea  amounts  to  the  general  issue,  see  post,  §  198 

81.  B.  &  O.  R.  Co.  v.  Polly,  Woods  &  Co.,  14  Gratt.  447;  4  Va 
Law  Register,  769-772;  C.  &  O.  R.  Co.  v.  Risen,  99  Va.  18,  37  S.  E 
320;  Graves'  Notes  on  Pleading  (old)  83. 

62.  Ches.  &  O.  R.  Co.  v.  Rison,  99  Va.  18,  37  S.   E.  320. 

63.  Va.  Fire  &  Marine  Ins.  Co.  v.  Buck,  88  Va.  517,  13  S.   E.  973 
4  Min.  Inst.  1262. 


CHAPTER  XL 
PROCEEDINGS  BY  WAY  OF  MOTION. 

§     95.   Scope   of   chapter. 

§     96.  Proceedings  under  §  3211  of  the  Code. 
§     97.  Policy  of  the  statute — Construction  of  notice. 
§     98..  When  motion  lies  under  §  3211  of  Code. 
§     99.  When  motion  does  not  lie  under  §  3211   of  Code. 
§  100.  The  manner  of  making  defence  to  motions. 
§  101.  Against  whom  judgment  may  be  given  on  motion. 
§  102.  The  trial  of  the  motion. 

§  103.  Motions  to  recover  money  otherwise  than  under  §  3211  of  the 
Code. 

§   95.    Scope  of  chapter. 

In  this  chapter  only  motions  for  the  recovery  of  money  will 
be  treated.  Other  motions,  which  are  merely  incidental  to 
various  proceedings  and  modes  of  relief  in  actions,  but  not 
for  the  recovery  of  money,  e.  g.,  motions  to  abate  attachments, 
to  correct  errors  in  proceedings,  in  arrest  of  judgment,  for 
new  trials,  etc.,  are  treated  elsewhere.  The  motions  treated 
in  this  chapter  are  motions  to  recover  money  on  official  bonds, 
certain  motions  on  statutory  bonds,  and  motions  under  §  3211 
of  the  Code  to  recover  money  due  by  contract.  The  species 
of  motion  last  mentioned  is  the  most  important,  and  will  be 
first  treated. 

§   96.   Proceedings  under  §  3211  of  the  Code.1 

The  procedure  by  motion  (after  notice)  for  a  judgment  is 
practically  what  is  known  as  "Code  Pleading,"  plain  and  simple, 
and  is  destitute  of  all  of  the  formalities  usual  in  common-law 
actions.  The  notice  takes  the  place  of  both  the  writ  and  decla- 
ration in  common-law  actions.  It  takes  the  place  of  the  writ 

1.  Section  3211  of  the  Code  is  as  follows:  "Any  person  entitled 
to  recover  money  by  action  on  any  contract  may,  on  motion  be- 
fore any  court  which  would  have  jurisdiction  in  an  action  otherwise 
than  under  section  thirty-two  hundred  and  fifteen,  obtain  judgment 
for  such  money  after  fifteen  days'  notice,  which  notice  shall  be  re- 


160  PROCEEDINGS   BY    WAY    OF    MOTION  §    96 

by  notifying  the  defendant  when  and  where  he  is  to  appear, 
and  of  the  declaration  by  setting  out  the  contract  upon  which 
judgment  is  asked,  and  alleging  its  breach.  The  notice  is,  in 
legal  contemplation,  presumed  to  have  been  prepared  by  the 
plaintiff  himself,  or  some  layman,  and  hence  great  liberality  of 
construction  is  indulged  by  the  courts  in  determining  its  suffi- 
ciency. It  is  wholly  informal,  and,  as  it  is  always  returnable 
to  some  day  of  a  term  of  court,  there  are  no  proceedings  at 
the  rules.  The  notice  prior  to  its  return  to  the  clerk's  office 
is  not  an  official  document,  and  the  clerk  makes  no  note  of 
it  generally  until  it  has  been  executed  and  returned  to  his  office. 

turned  to  the  Clerk's  office  of  such  court  within  five  days  after  the 
service  of  the  same,  and  after  such  fifteen  days  notice  the  motion 
shall  be  docketed.  In  the  case  of  a  motion  for  judgment  upon  any 
contract  upon  which  under  the  rules  of  pleading  an  action  of  as- 
sumpsit  would  lie  if  the  plaintiff  shall  serve  the  defendant  at  the 
same  time  and  in  the  same  manner  as  the  notice  is  served  with  a 
copy,  certified  by  the  clerk  of  the  court  to  which  the  notice  is  re- 
turnable, of  the  account  on  which  the  motion  is  to  be  made,  stating 
distinctly  the  seveial  items  of  his  claim  and  the  aggregate  amount 
thereof  and  the  time  from  which  he  claims  interest  thereon  and  the 
credits  if  any  to  which  the  defendant  may  be  entitled,  and  if  the 
plaintiff  file  with  his  notice  an  affidavit  made  by  himself  or  his 
agent,  stating  therein  to  the  best  of  the  affiant's  belief  the  amount 
of  the  plaintiff's  claim,  that  such  amount  is  justly  due,  and  the  time 
from  which  the  plaintiff  claims  interest,  judgment  shall  be  rendered 
by  the  court  in  which  the  motion  is  made  for  the  plaintiff  for  the 
amount  claimed  in  the  affidavit  filed  with  his  notice  unless  the  de- 
fendant shall  allege  on  oath  of  himself  or  his  agent  that  the  plain- 
tiff is  not  entitled,  as  the  affiant  verily  believes,  to  recover  anything 
from  the  defendant  on  such  claim,  or  state  on  such  oath  a  sum  cer- 
tain less  than  that  set  forth  in  the  affidavit  filed  by  the  plaintiff 
which,  as  the  affiant  verily  believes,  is  all  that  the  plaintiff  is  enti- 
tled to  recover  from  the  defendant  on  such  claim.  If  the  defendant 
shall  admit  that  the  plaintiff  is  entitled  to  recover  from  the  defend- 
ant a  sum  certain  less  than  that  stated  in  the  affidavit  filed  by  the 
plaintiff  judgment  may  be  taken  by  the  plaintiff  for  the  sum  ad- 
mitted to  be  due  and  the  case  be  tried  as  to  the  residue.  A  motion 
under  this  section  which  is  docketed  under  section  thirty-three  hun- 
dred and  seventy-eight  shall  not  be  discontinued  by  reason  of  no 
order  of  continuance  being  entered  in  it  from  one  day  to  another 
or  from  term  to  term.  This  section  shall  not  be  construed  as  in- 
tended to  affect  the  remedy  by  motion  given  by  the  preceding  sec- 
tion." 


§   96  PROCEEDINGS  UNDER   §  3211   OF  THE  CODE  161 

Then  and  then  only  is  it  an  official  document.  If,  however, 
the  plaintiff  is  proceeding  on  an  open  account  and  desires  to 
compel  the  defendant  to  swear  to  his  plea,  or  other  mode  of 
defence,  he  must  be  careful  to  observe  the  requirements  of 
the  statute,  which  are : 

(1)  He  must  serve  the  defendant  at  the  same  time  and  in 
the  same  manner  as  the  notice  is  served  with  a  copy  of  the 
account   on    which   the   motion   is   to   be   made.      This   copy   of 
the   account   must   state   distinctly:     (a)    The   several   items   of 
the   plaintiff's   claim;    (b)    the   aggregate   amount  thereof;    (c) 
the  time  from  which  he  claims  interest;  and    (d)   the  credits, 
if  any,  to  which  the  defendant  may  be  entitled. 

(2)  This  copy  of  the  account  must  be  certified  by  the  clerk 
of  the   court  to  which   the  notice  is   returnable.     This  means 
that  the  clerk  must  certify  on  the  copy  of  the  account  served 
on  the   defendant  that  it   is   a  true   copy  of   an   account  filed 
in   his   office  by   the   plaintiff.     It   is   necessary,   therefore,    for 
the  plaintiff  to   file  the  account  with  the   clerk  in   order  that 
he  may  be  able  to  make  this  certificate. 

(3)  He  must  file  with  his  notice  an  affidavit  made  by  himself 
or  his  agent  stating  therein  to  the  best  of  the  affiant's  belief  (a) 
the  amount  of  the   plaintiff's   claim,    (b)    that  such   amount  is 
justly   due,   and    (c)    the  time   from  which  the  plaintiff  claims 
interest. 

It  will  be  seen  that  the  plaintiff  must  make  as  many  copies 
of  his  account  as  there  are  defendants  to  be  served.  The 
original  must  be  filed  in  the  clerk's  office  (in  order  that  the 
clerk  may  certify  the  copy  to  be  served  on  the  defendant), 
and  a  copy  served  on  each  defendant.  The  plaintiff  need  not 
serve  the  defendant  with  a  copy  of  the  affidavit  verifying  the 
account.  He  is  merely  required  to  file  the  affidavit  with  his 
notice  in  the  clerk's  office.  However,  as  such  affidavits  are 
frequently  endorsed  on  the  accounts,  it  is  very  common  in 
practice  to  make  copies  of  the  whole  paper,  account  and  affidavit, 
and  serve  on  the  defendant.  After  the  plaintiff  has  prepared 
his  notice,  and  the  copies  thereof,  and  the  above  account  and 
copies,  he  delivers  the  same  to  the  sheriff  or  sergeant  to  be 
—11 


162  PROCEEDINGS  BY  WAY  OF  MOTION  §    96 

served  on  the  defendants.2  When  the  motion  is  made  judg- 
ment is  given  by  the  court  for  the  plaintiff  for  the  amount 
claimed  in  the  affidavit  filed  with  his  notice,  unless  the  de- 
fendant shall  allege  oh  oath  of  himself  or  his  agent:  (1)  That 
the  plaintiff  is  not  entitled,  as  the  affiant  verily  believes,  to 
recover  anything  from  the  defendant  on  such  claim;  or  (2) 
state  on  such  oath  a  sum  certain  less  than  that  set  forth  in 
the  affidavit  filed  by  the  plaintiff,  which,  as  the  affiant  verily  be- 
lieves, is  all  that  the  plaintiff  is  entitled  to  recover  from  the 
defendant  on  such  claim.  In  the  latter  case,  judgment  may 
be  taken  for  the  sum  admitted  to  be  due,  and  the  case  tried 
as  to  the  residue. 

It  should  be  observed  that  the  provisions  of  the.  statute  ap- 
ply only  to  open  accounts,  and  as  to  them  the  statute  furnishes 
a  most  convenient  remedy,  which  is  especially  useful  to  non- 
resident creditors,  who  are  suing  on  uncontested  claims,  and 
are  thus  saved  the  expense  of  attending  the  trial  to  give  their 
testimony,  or  of  taking  depositions. 

These  provisions  do  not  apply  to  that  very  numerous  class 
of  cases  where  motions  are  made  on  promissory  notes,  bonds, 
bills  of  exchange,  due  bills,  checks,  etc.  In  such  cases  the  pro- 
visions of  the  statute  quoted  as  to  affidavit,  etc.,  are  not  needed,  for 
if  the  notice  charges  that  the  defendant  made,  endorsed,  as- 
signed or  accepted  such  writings,  he  is  put  to  his  oath,  by 
statute,  if  he  wishes  to  deny  such  allegations.3 

Particular  care  should  be  taken,  when  the  affidavit  is  made 
by  an  agent  of  either  the  plaintiff  or  the  defendant,  that  the 
affiant  be  described  in  the  affidavit  as  agent,  and  not  as  secretary 
and  treasurer,  bookkeeper,  vice-president,  director,  etc.,  as  it 
has  been  held  in  Virginia  that  such  terms  do  not  ex  vl  termini 
import  agency,  whatever  may  be  the  true  status  of  the  affiant, 
and  that,  under  statutes  requiring  affidavits  by  "agents," 
the  affiant  must  be  described  as  agent.4 

2.  As   to   mode   of   service,   see   Code,   §§   3207,   3224. 

3.  Code,   §   3279. 

4.  Merriman     Co.   v.   Thomas,    103    Va.    24,    48    S.    E.    490     ("book- 
keeper"); Taylor  v.  S.  M.  Tob.  Co.,  107  Va.  787,  60  S.  E.  1323  ("sec- 
retary  and   treasurer");    Damron   v.    Bank,    112   Va.  — ,    72   S.    E.   153 
("vice-president";  "director"). 


§    96  PROCEEDINGS  UNDER   §  3211   OE  THE  CODE  163 

When  the  motion  is  made  on  a  bond,  note  or  other  writing, 
it  is  the  practice  either  to  copy  the  instrument  in  the  notice 
or  to  attach  a  copy  of  the  same  to  the  notice,  reserving  the 
original  for  production  in  court  when  the  motion  is  heard. 

Forms  of  notice  of  motion,  affidavit,  and  counter  affidavit, 
are  given  in  the  annotations  to  §  3211  of  the  Code. 

Venue  of  Proceeding  by  Motion. — The  statute  provides 
that  the  motion  may  be  made  before  any  court  which  would 
have  jurisdiction  in  an  action  otherwise  than  under  §  3215  of 
the  Code. 

This  last-mentioned  statute  provides  that  "An  action  may 
be  brought  in  any  county  or  corporation  wherein  the  cause  of 
action,  or  any  part  thereof  arose,  although  none  of  the  de- 
fendants reside  therein."  Thus  the  venue  of  proceedings  by 
motion  is  precisely  the  same  as  that  in  formal  legal  actions  with 
the  exception  that  where  the  onl\  ground  of  jurisdiction  is 
that  the  cause  of  action,  or  some  part  thereof,  arose  in  the 
county  or  corporation  wherein  an  action  is  desired  to  be  brought, 
some  form  of  action  other  than  a  proceeding  by  motion  must 
be  adopted.  But  if  any  of  the  grounds  of  venue  given  in 
§  3214  exist,  the  procedure  by  motion  may  be  maintained.  So,  it 
has  been  held  that,  construing  §  3214  of  the  Code  together 
with  §  3211,  a  motion  may  be  maintained  against  an  insurance 
company,  either  fire  or  life,  in  the  county  in  which  the  prop- 
erty insured,  and  which  was  destroyed  by  fire,  was  situated 
at  the  date  of  the  policy,  or  the  person  whose  life  was  in- 
sured resided  at  the  date  of  his  death,  or  at  the  date  of  the 
policy.-1 

Under  the  conformity  act  (Rev.  Stat.,  §  914;  U.  S.  Comp. 
Stat.  1901,  p.  684)  an  action  may  be  instituted  by  notice  under 
§  3211  in  a  federal  court  in  Virginia  in  accordance  with  the 
State  practice.6 

Length  of  Notice  and  Return  Day. — The  statute  requires 
fifteen  days'  notice,  and  the  length  of  the  notice  is  jurisdictional 

5.  Morotock  Ins.  Co.  v.  Pankey,  91  Va.  259,  21   S.   E.  487. 

6.  Leas    &   McVitty  v.   Merriman,   132    Fed.   510;    Schofield   v.    Pal- 
mer, 134  Fed.  753,  11  Va.  Law  Reg.  31.     See  also  10  Va.  Law  Reg. 
739';  14  Va.   Law  Reg.  339. 


164  PROCEEDINGS  BY  WAY  OF  MOTION  §    96 

and  must  be  complied  with.  In  Tench  v.  Gray7  notice  of  a 
motion  for  judgment  was  served  on  October  13,  1900,  inform- 
ing the  defendant  that  a  judgment  would  be  asked  for  "on 
the  first  day  of  the  next  term"  of  the  circuit  court.  The 
time  fixed  by  law  for  the  next  term  to  begin  was  October  27, 
1900,  but  the  court  did  not  actually  open  until  October  29,  1900. 
The  circuit  court  quashed  the  notice  as  insufficient  in  length 
of  time,  and,  on  appeal,  this  judgment  was  affirmed.  The 
Court  of  Appeals  said  that  "under  the  law,  no  judgment  could 
be  given  upon  this  notice  unless  served  on  the  defendant  at 
least  fifteen  clays  before  the  day  on  which  the  motion  was  to 
be  made.  The  day  fixed  by  law  for  the  term  to  begin  being 
October  27,  1900,  it  is  apparent  that  a  notice  served  October 
13,  1900,  did  not  give  the  fifteen  days  required  before  the 
day  the  motion  was  to  be  made."  The  court  held  further 
that  a  litigant  had  a  right  to  assume  that  the  law  will  be 
complied  with,  and  that  the  court  will  commence  on  the  day 
prescribed  by  the  statute,  and  he  could  not  be  prejudiced  by  a 
delay  in  the  actual  convening  of  the  court.  The  notice  was 
a  nullity  and  the  defendant  had  the  right  to  treat  it  as  such. 

In  Hanks  v.  Lyons8  it  was  held  that  a  notice  of  a  motion 
for  a  judgment  for  money,  under  §  3211  of  the  Code,  need 
not  be  given  to  the  first  day  of  the  term  of  the  court,  but  may 
be  given  to  any  day  of  the  term,  provided  only  the  notice  be 
served  at  least  fifteen  days  before  the  day  on  which  judgment 
is  to  be  asked.  In  this  case  it  was  further  held  (under  the 
old  statute)  that  a  notice  of  a  motion  could  not  be  given  and 
heard  during  the  term,  but  must  be  in  a  condition  to  be 
docketed  before  the  term.9  This  last  proposition  is  no  longer 
the  law  since  the  amendment  to  §  3211  by  Acts  1895-6,  p.  140. 
Before  this  amendment  the  notice  had  to  be  returned  to  the 
clerk's  office  ten  days  before  the  commencement  of  the  term, 
and,  this  being  so,  it  inevitably  followed  that  the  notice  could 
not  be  given  during  the  term.  Since  the  said  amendment, 
the  statute  does  not  require  this  return  before  the  term,  but 

7.  102   Va.   215,  46   S.   E.   287. 

8.  92  Va.  30,  22  S.  E.  813,  1  Va.  Law  Reg.  439  and  note. 

9.  Citing   Hale  v.  Chamberlain,   13   Gratt.   658. 


§   96  PROCEEDINGS  UNDER   §  3211   OF  THE  CODE  165 

provides  that,  "after  such  fifteen  days'  notice,  the  motion  shall 
be  docketed."  Motions  under  §  3211,  as  amended,- mature  after 
fifteen  days'  notice,  whether  the  notice  be  served  before  or  dur- 
ing the  term  at  which  the  motion  is  to  be  heard,  provided  the 
notice  is  returned  to  the  clerk's  office  within  five  days  after 
service.  After  complying  with  these  requirements  with  refer- 
ence to  the  service  and  return,  the  motion  should  be  docketed, 
though  the  term  has  already  commenced  before  the  maturity 
of  the  notice.  It  is  the  usual  practice,  to  allow  such  notices 
to  be  given,  matured  and  tried,  during  the  same  term,  pro- 
vided the  term  lasts  long  enough.10 

The  Return  and  Proof  of  Notice. — The  statute  requires 
that  the  notice  shall  be  returned  to  the  clerk's  office  within 
five  days  after  service.  In  Swift  &  Co.  v.  Wood11  it  is  held 
that  this  provision  of  the  statute  is  mandatory  and  must  be 
complied  with,  and  that,  in  computing  the  time,  the  day  of 
service  is  to  be  counted,  as  prescribed  by  §  5,  clause  8,  of 
the  Code,  but  not  the  date  on  which  the  notice  is  returned,  and 
hence  a  notice  served  February  21  and  returned  February  26 
is  not  within  five  days — the  time  prescribed — and  a  judgment 
by  default  rendered  thereon  was  invalid.  The  court  further 
held  that,  in  counting  the  five  days,  Sunday  is  to  be  counted 
like  any  other  day,  but  if  the  last  day  of  the  five  fell  on 
Sunday  a  notice  returned  on  the  next  day  would  be  held  to 
comply  with  the  statute. 

It  is  usual  for  the  clerk  to  endorse  on  the  notice  the  date 
of  its  return  by  the  officer  serving  same,  and,  when  this  is 
done,  it  affirmatively  shows  whether  or  not  the  notice  was 
returned  in  the  prescribed  time.  But  where  an  action  is  brought 
under  this  section  the  question  whether  the  return  was  made 
in  the  statutory  time  is  one  of  fact,  which  may  be  determined 
by  evidence,  although  the  date  of  the  return  is  not  endorsed 
on  the  notice;  and  where  it  is  shown  that  the  return  was  in 
fact  made,  and  the  cause  duly  docketed,  the  presumption  is 

10.  See    2    Va.    Law    Register    647-651,    913-914;    Graves'    Notes    on 
Pleading  (new)   37,  38.     It  may  be  mentioned  here  that,  though  not 
expressly   stated,    it   is   necessarily   implied,   that   the   notice    shall    be 
in   writing,  as   otherwise   it   could   not   be   served,   returned,    filed   and 
docketed,  as  required.     See  note  1  Va.  Law  Reg.  442. 

11.  103    Va.    494,    49    S.    E.    643. 


166  PROCEEDINGS  BY  WAY  OF  MOTION  §    96 

that  the  sheriff  complied  with  the    law    and    made    the    return 
within  the  prescribed  time.12 

Continuances. — Section  3211  provides  that  "a  motion  under 
this  section  which  is  docketed  under  §  3378  shall  not  be  dis- 
continued by  reason  of  no  order  of  continuance  being  entered 
in  it  from  one  day  to  another,  or  from  term  to  term."13  It  has 

12.  New    River    Mineral    Co.    v.    Roanoke    Coal    &    Coke    Co.,    110 
Fed.   343,   49   C.   C.   A.   78. 

13.  Before    the   present    statute   it   was    held    in    Amis   v.    Koger,    7 
Leigh   221,   that   a   motion    cannot   be   continued,   except   by   consent, 
from  the  June  term  until  the  August  term  of  court,  passing  by  the 
intermediate  July  term;   that  such  a  continuance  would  work  a  dis- 
continuance, Judge  Carr  saying:     "If  the  court  could  thus  pass  over 
one   term,   it   might   twenty."     And   this   would,    even    since   the   stat- 
ute, seem  to  be  the  correct  rule,  as  the  statute  merely  provides  for 
cases  where  there  is  no  order  of  continuance,  and  not  for  erroneous 
and  unjustifiable  continuances. 

That  portion  of  §  3211  quoted  in  the  text  has  given  rise  to  some 
difficulty,  and  is  the  subject  of  discussion  in  2  Va.  Law  Reg.  647- 
651,  913,  914.  The  difficulty  arises  out  of  the  fact  that  §  3378, 
relating  to  docketing  causes,  requires  the  clerk  to  make  out  the 
docket  before  the  term  of  the  court  begins,  and  the  argument  is 
made  that  the  notice  must  be  served  and  returned  to  the  clerk's 
office  before  the  term  begins  in  order  to  enable  the  clerk  to  place 
the  case  on  the  docket.  This  provision  of  §  3211  was  inserted  at 
the  time  of  its  original  enactment,  when  the  notice  was  required 
to  be  executed  60  days  before  the  return-day  and  to  be  returned  to 
the  clerk's  office  forty  days  before  the  motion  was  heard  (Code 
1849,  ch.  168,  §  5),  and  when  courts  difl  not  sit  so  long.  Under  the 
Code  of  1887  the  notice  was  required  to  be  returned  to  the  clerk's 
office  "ten  days  before  the  commencement  of  the  term."  Under 
these  statutes  it  was  proper  to  require  the  docketing  of  motions 
before  the  term  as  of  other  actions  at  law  and  there  was  no  diffi- 
culty in  complying  with  the  statutes  because  the  notice  had  to  be 
executed  and  returned  before  the  term  began,  but  when  the  statute 
was  changed  so  as  to  allow  judgment  after  fifteen  days'  notice,  and 
requiring  the  notice  to  be  returned  to  the  clerk's  office  within  five 
days  after  service,  this  enabled  parties  to  proceed  by  notice  after 
the  term  began  and  it  would  seem  that  the  reference  to  §  3378  should 
have  been  either  omitted  altogether,  or  else  the  phraseology  changed, 
but  this  was  not  done.  It  was  left  in  its  original  form  and  the  effect 
must  now  be  determined.  It  can  hardly  be  doubted  that  the  change 
in  the  phraseology  of  the  section  so  as  to  require  the  notice  to  be 
returned  within  five  days  after  service  instead  of  ten  days  before 
the  commencement  of  the  term  was  made  for  the  purpose  of  en- 


§    96  PROCEEDINGS  UNDER   §  3211   OF  THE  CODE  167 

been  held  that  a  motion  to  recover  money  under  §  3211  of  the 
Code,  when  duly  docketed  according  to  the  statute,  is  not  dis- 
continued by  the  failure  of  the  term  on  account  of  the  illness 
of  the  judge.  And  this  seems  plainly  right.14 

So,  it  is  said:  "The  docketing  supersedes  the  necessity  of 
calling  and  continuing  the  motion,  and  it  remains  like  actions 
at  law,  a  case  in  court  to  be  called  and  disposed  of  in  the 
regular  calling  of  the  docket.15  The  motion  should  be  called 

abling  parties  to  begin  the  proceeding  by  motion  after  the  com- 
mencement of  the  term  in  those  courts  which  sat  for  long  periods 
of  time  (2  Va.  Law  Reg.  913)  and  it  would  seem  that  the  retention 
of  the  reference  to  §  3378  was  an  inadvertence  (2  Va.  Law  Reg. 
651).  But,  however  this  may  be,  the  language  of  the  section  must 
be  construed,  and  in  doing  so,  it  must  be  construed  in  harmony  with 
other  sections  of  the  Code,  and  the  whole  permitted  to  stand,  if 
possible.  The  language  of  §  3211  is  very  explicit  that  "after  such 
fifteen  days'  notice  the  motion  shall  be  docketed."  It  makes  no  re- 
quirement that  this  shall  be  before  the  term  begins.  It  is  general, 
and  applies  as  well  to  notices  returned  during  the  term  as  to  those 
returned  before.  If  there  is  no  occasion  to  continue  the  motion  to 
another  term,  judgment  may  be  taken  at  the  return-day  of  the  no- 
tice, but  if  the  parties  are  not  ready  for  trial  the  case  like  any  other 
case  may  be  continued  to  another  term.  But  suppose  the  motion 
is  docketed  as  required,  but  no  order  of  continuance  is  entered  in 
the  cause,  the  effect  would  be  a  discontinuance  unless  there  was  some 
statute  to  prevent  it,  and  hence  it  was  provided  that  if  docketed  un- 
der §  3378  (that  is,  before  the  term)  no  such  discontinuance  shall 
take  place.  This  would  leave  a  motion  not  docketed  under  §  3378 
liable  to  be  discontinued  if  no  order  of  continuance  was  entered 
in  it.  The  whole  question  is  simply  one  of  discontinuance  if  no  order 
of  continuance  is  entered  in  the  case.  But  this  is  amply  provided 
against  by  §  3124  of  the  Code,  declaring  that  "All  causes  upon  the 
docket  of  any  court,  and  all  other  matters  ready  for  its  decision, 
which  shall  not  have  been  determined  before  the  end  of  a  term, 
whether  regular  or  special,  shall,  without  any  order  of  continuance, 
stand  continued  to  the  next  term." 

This  is  a  cause  "upon  the  docket"  by  the  express  mandate  of 
§  3211  and  is  saved  from  a  discontinuance  by  §  3124.  Indeed,  it  is 
not  perceived  why  any  reference  should  ever  have  been  made  to 
§  3378,  as  §  3124  was  in  operation  when  §  3211  was  first  enacted. 
Even  a  criminal  case  is  not  discontinued  by  a  failure  to  enter  an 
order  of  continuance  therein.  Harrison's  Case,  81  Va.  492. 

14.  Dillard   v.   N.    Y.    Life    Ins.    Co.    (Cir.    Court   of    Lynchburg),    5 
Va.   Law   Reg.  43,   and   note. 

15.  Hale  ?'.  Chamberlain,  13  Gratt.  658. 


168 


PROCEEDINGS  BY  WAY  OF  MOTION 


97 


up  in  open  court  on  the  day  to  which  the  notice  is  return- 
able, and  if  judgment  is  not  to  be  asked  on  that  day,  the 
motion  should  be  docketed,  and  either  continued  to  another  term, 
or  a  day  fixed  for  trial  at  a  later  day  of  the  same  term.  This 
should  be  done  in  order  that  the  records  of  the  court  may 
show  the  pendency  of  the  motion.  If  the  notice  is  not  proved 
or  docketed,  nor  otherwise  noticed  on  the  record  on  the  return 
day,  it  will  be  deemed  to  have  been  abandoned.154 

Advantages  of  Procedure  by  Motion. — One  of  the  advan- 
tages of  procedure  by  motion  is  the  simplicity  of  the  proceeding 
and  emancipation  from  the  forms  required  in  a  regular  action. 
The  second  and  chief  advantage  is  that  you  may  proceed  by 
motion  when  it  is  too  late  to  mature  a  regular  action,  or  even 
after  a  term  of  court  has  begun,  if  it  shall  continue  in  session 
long  enough  for  that  purpose  as  many  of  the  city  courts 
do.  It  requires  two  sets  of  rule  days  to  mature  a  regular 
action,  but  you  may  proceed  by  motion,  as  just  stated,  after 
either  or  both  sets  of  rule  days  have  passed,  and  if  there  is 
time  enough  to  give  the  requisite  notice,  may  thus  proceed  to 
obtain  judgment  by  motion  when  it  will  be  too  late  to  obtain 
it  by  a  regular  action.  Of  course,  this  latter  advantage  has  no 
application  where  there  is  ample  time  to  proceed  either  by 
action  or  motion. 

§    97.  Policy  of  the  statute — Construction  of  notice. 

Section  3211  of  the  Code  was  first  incorporated  into  our 
statute  law  by  the  revisors  of  1849.  As  said  in  Hale  v.  Cham- 
berlain,16 the  revisors,  seeing  that  other  proceedings  by  motion 
theretofore  given  had  worked  well,  "proposed  to  extend  the 
remedy  by  motion  on  notice  to  all  cases  in  which  a  person 
was  entitled  to  recover  money  by  action  on  contract." 

The  object  of  the  statute  was  to  simplify  and  shorten  plead- 
ings and  other  proceedings,  to  afford  a  more  speedy  remedy 
for  the  enforcement  of  contracts,  and  give  suitors  a  plain  and 
summary  proceeding  for  the  recovery  of  judgments.17 

15a.  Johnson    v.    Wheeler    Lumber    Co.    (W.    Va.),    72    S.    E.    470. 

16.  13   Gratt.   658. 

17.  Hale  v.  Chamberlain,  13  Gratt.  658;  Preston  v.  Salem  Improve- 
ment  Company,   91   Va.   583,   22   S.    E.   486,   1   Va.   Law   Register  447, 
and  note;  Cahoon  v.  McCulloch,  92  Va.  177,  23  S.  E.  225. 


§   97      POLICY  OF  THE  STATUTE — CONSTRUCTION   OF   NOTICE 

Of  it,  Judge  Burks  said:  "The  statutory  proceeding  by  mo- 
tion for  the  recovery  of  money  due  by  contract  is  of  great 
convenience  and  utility.  It  is  a  most  salutary  reform.  Much 
of  the  formality  of  technical  common-law  pleading  is  dispensed 
with,  and  justice  is  administered  more  speedily  and  with  less 
chance  of  miscarriage.  It  is  not  surprising,  therefore,  that 
in  plain  cases  the  summary  remedy  by  motion  has  almost  super- 
seded the  common-law  forms  of  action  for  the  recovery  of 
debts."18 

The  courts  are  most  liberal  in  their  construction  of  the  notice. 
It  is  held  that  the  notice  takes  the  place  of  both  the  writ  and 
the  declaration  in  a  common-law  action,19  and  that  the  rule 
governing  notices  is  that  they  are  presumed  to  be  the  acts  of 
parties  and  not  of  lawyers.  They  are  viewed  with  great  indul- 
gence by  the  courts;  and  if  the  terms  of  the  notice  be  general, 
the  court  will  construe  it  favorably,  and  apply  it  according 
to  the  truth  of  the  case,  so  far  as  the  notice  will  admit  of 
such  application.  If  it  be  such  that  the  defendant  cannot  mis- 
take the  object  of  the  motion,  it  will  be  sufficient.20 

Particularity  Required  in  Notice. — As  it  is  the  object  of 
all  pleadings  to  give  to  the  opposite  party  a  sufficient  idea  of 
the  grounds  of  action  or  defence  relied  on,  and  to  state  a 
good  cause  of  action  or  a  valid  defence,  so  also  in  motions, 
though  great  informality  is  allowed,  the  notice  must  state  a 
case  and  must  have  the  requisite  certainty. 

Accordingly  it  has  been  held  that  the  names  of  the  parties, 
the  amount  for  which  judgment  will  be  asked,  and  the  time 
and  place  at  which  the  motion  will  be  made  must  be  stated 
in  clear  and  unmistakable  terms.21  And,  in  a  proceeding  by 
motion  against  the  endorser  of  a  negotiable  note,  the  notice 
must  contain  such  allegations  of  presentment  for  payment  and 

18.  1  Va.  Law  Register  441. 

19.  Morotock  Ins.  Co.  v.  Pankey,  91  Va.  259,  21  S.  E.  487;  Grubbs 
v.  National   Life   Ins.   Co.,  94  Va.  589,  27   S.   E.  464;  Tench  v.   Gray, 
102  Va.  215,  46  S.  E.  287;  Security  Loan  &  Trust  Co.  v.  Fields,   110 
Va.   827,   67   S.   E.   342. 

20.  Supervisors  v.   Dunn,  27  Gratt.  608;  Carr  v.   Mead,  77  Va.  142 ; 
Union  Central  Life  Ins.  Co.  v.  Pollard,  94  Va.   151,  26  S.  E.  421. 

21.  Tench  v.   Gray,  supra. 


170  PROCEEDINGS  BY  WAY  OF  MOTION  §    97 

notice  of  dishonor  to  the  endorser  as  will  fix  a  liability  upon 
him  for  the  payment  of  the  note,  else  the  notice  will  be  bad 
upon  demurrer.22 

Variance. — The  rule  that  the  allegata  and  the  probata  must 
correspond  is  likewise  applicable  to  proceedings  by  way  of  mo- 
tion, and  if  the  notice  descends  to  particulars,  as  to  dates  and 
sums,  it  must  be  correct  as  to  them,  and  the  documents  re- 
ferred to  must,  when  produced,  correspond  with  the  notice.  If 
there  is  a  material  variance  no  judgment  can  be  given.23  Thus, 
in  a  notice  of  a  motion  to  be  made  on  a  forthcoming  bond, 
the  bond  was  described  by  mistake  as  executed,  by  John  when 
it  was  in  fact  executed  by  George  M.  Cooke,  and  it  was  held 
that  the  variance  was  material,  and  the  notice  insufficient.24 
And,  in  a  motion  on  a  treasurer's  bond,  where  there  was  a 
plea  of  nul  tie!  record,  the  bond  produced  on  the  trial  was  dif- 
ferent from  that  recited  in  the  notice  of  the  motion,  and  the 
court  held  that  this  was  a  variance,  and  the  plea  of  nul  tiel  record 
was  sustained  and  the  motion  dismissed.25 

Proceeding  by  Motion  Is  Action  at  La^v. — In  Furst  v. 
Banks20  it  was  said  that :  "The  plaintiff,  not  the  clerk,  gives  the 
notice.  It  is  not  required  to  be  served  by  the  sheriff  or  other 
officer.  It  is  a  private  paper  in  the  hands  of  the  plaintiff  or  his 
agent,  and  does  not  belong  to  the  court  until  it  is  returned  to, 
or  more  properly,  filed  in,  the  clerk's  office.  Then,  and  not  till 
then,  has  the  clerk,  as  such,  any  knowledge  of  or  control  over 

22.  Security  Loan  &  Trust  Co.  v.  Fields,  110  Va.  827,  67  S.  E.  342. 

23.  Drew   v.   Anderson,    1   Call     44. 

24.  Cookes  v.  Bank,  1  Leigh  475.     As  to  amendments  when  at  the 
trial    a    variance    appears    between    the    evidence    and    the    allegations 
or  recitals,  see  Code,  §  3384,  giving  the  courts  wide  powers  to  per- 
mit amendments    and   to   promote    substantial   justice    in    such    cases. 
In   the    case    of   a   variance    the    proper   practice    is    to    object    to    the 
evidence  when   offered,   or  move   to   exclude   it,   the  attention   of  the 
court  being   already   called   to   the   variance,    and   an   opportunity   af- 
forded   to   meet   the    emergency   under   the    section    of   the    Code    re- 
ferred to.     Portsmouth  St.  R.  Co.  v.  Peed,  102  Va.  662,  47  S.   E.   850. 

25.  Blanton  v.  Com.,  91   Va.  1,  20  S.   E.  884. 

26.  101  Va.  208,  43  S.  E.  360,  8  Va.  Law  Reg.  821,  and  note.     See 
this   note   for   numerous   illustrations    where    statutes    governing   pro- 
ceedings  in  "action  at  law"  will  apply  to  motions. 


§    98  WHEN    MOTION   LIES   UNDER   §   3211    OF   CODE  171 

it."  And,  as  a  result  of  the  above  reasoning,  the  court  held  that 
a  proceeding  by  motion  under  §  3211  cannot  be  regarded  as  the 
institution  of  an  action  so  as  to  warrant  an  attachment  until  the 
notice  has  been  served  and  filed  in  the  clerk's  office,  and  that  an 
attachment  issued  before  return  of  the  notice  is  void.27  In  this 
case  it  was  objected  that  such  a  motion  was  not  an  action  at  laiv 
under  §  2959  of  the  Code  providing  for  the  issuing  of  attach- 
ments in  an  "action  of  law."  The  court,  having  disposed  of  the 
case  on  another  ground,  deemed  it  unnecessary  to  decide  this 
question.  All  doubt  as  to  the  last  question,  however,  is  now  re- 
solved by  several  decisions  which  hold,  unequivocally,  that  a 
proceeding  by  motion  under  §  3211  is  an  action  at  /aw.28  It  has 
been  held  in  a  recent  case  that  §  2959  of  the  Code  of  1887,  which 
provides  for  the  issuing  of  an  attachment  at  the  time  of  or  after 
the  institution  of  any  action  at  law  for  the  recovery  of  a  debt, 
etc.,  applies  to  a  motion  for  a  judgment  by  notice,  and  an  attach- 
ment may  be  sued  out  in  such  a  proceeding.29 

§   98.   When  motion  lies  under  §  3211  of  Code. 

The  general  rule  is  as  follows :  "The  statute  thus  authorizes 
the  proceeding  by  motion  whenever  a  person  is  entitled  to  re- 
cover money  by  action  on  'any  contract.'  The  only  restriction 
imposed  by  the  statute  as  to  the  nature  of  the  contract  upon 
which  the  recovery  may  be  by  motion  is  the  right  to  recover 

27.  In   a  note   to   this   case  in   8   Va,   Law   Register  824,   the   editor 
says:      "The    point    as    to    the    pendency    of    the    proceeding     *     *     * 
is  equally  pertinent  and   important   under   the    statute   of  limitations. 
on   the   question   when    the    statute    ceases    to    run."     A   common-law 
action .  is   considered   as   instituted   when    the    summons   is   issued   for 
the  purpose  of  having  it  executed,  and  the   statute  of  limitations  on 
the  claim  asserted  in  such  action  ceases  to  run  from  the  time  such 
action    is    instituted.      From    a    parity    of    reasoning    it    would    seem, 
therefore,  that,  as  a  proceeding  by  motion  is  only  instituted  on  the 
return   of  the   notice   to   the   clerk's   office,   the   statute   of  limitations 
would  only  cease  to  run  as  of  the  date  of  such  return. 

28.  See    Gordon   i:    Funkhouser,    100   Va.    675,    42    S.    E.    677;    Reed 
&   McCormack   r.    Gold,    102   Va.   37,    45    S.    E.    868;    Newport    News, 
etc.,   Ry.   Co.   v.    Bickford,    105   Va.    182,    52   S.    E.   1011.     And   in    the 
last  named  case  it  was  held  that  the  defendant  may  file  a  plea  under 
§  3299  of  the  Code  to  such  notice. 

29.  Breeden  v.   Peale,   106  Va.  39,  55   S.   E.  2. 


172  PROCEEDINGS  BY  WAY  OF  MOTION  §    99 

money  upon  it  by  action.  If  the  contract  is  such  that  the  person 
making  the  motion  is  entitled  to  recover  money  upon  it  by  action, 
he  is  entitled  to  proceed  to  do  so  by  motion,  whether  his  right  is 
based  upon  an  expressed  or  implied  contract.  The  remedy  ex- 
tends to  all  cases  in  which  a  person  is  entitled  to  recover  money 
by  action  on  contract."30 

Hence,  in  the  case  cited  in  the  margin  it  was  held  that  an  as- 
signee of  a  note  could  recover  against  a  remote  assignor  under 
§  3211 ;  the  recovery  being  on  the  implied  contract.  It  has  also- 
been  held  that  a  recovery  may  be  had  on  a  fire  insurance  policy 
under  this  section,31  or  on  a  life  insurance  policy.32 

§   99.    When  motion  does  not  lie  under  §  3211  of  Code. 

It  has  been  held  that  §  3211  does  not  authorize  the  recovery 
by  motion  of  a  statutory  penalty  for  failure  to  deliver  a  telegram: 
as  soon  as  practicable.  -The  court  said:  "Section  3211,  Code,, 
authorizes  the  remedy  by  motion  only  in  those  cases  in  which 
the  plaintiff  is  entitled  to  recover  money  by  action  on  a  contract;: 
and  here  the  proceeding  is  founded,  not  upon  contract,  but  upon 
a  tort,  i.  e.,  a  wrongful  violation  of  a  public  duty.  *  *  *  It 
is  true  an  action  of  debt  lies  for  a  statutory  penalty,  but  this  is 

30.  Long  v.  Pence,  93  Va.  584,  25   S.  E.  593. 

31.  Morotock   Insurance   Co.   v.   Pankey,   91   Va.   259,   21   S.    E.   487. 
See  opinion  in  this  case  for  form  of  such  notice  held  sufficient.     The 
right  to  proceed  by  motion  in  this  case  was  properly  called  in  ques- 
tion by  demurrer,  but  was  upheld.     The  opinion,  however,   does  not 
deal  with  the  question  whether  or  not  the  policy  was  a  contract  of 
indemnity,    or   a    contract   to    pay   money. 

32.  Union  Cent.  Life  Ins.  Co.  v.  Pollard,  94  Va.  151,  26  S.  E.  421; 
Grubbs  77.   Nat.   Life   Ins.   Co.,  94  Va.   589,   27   S.   E.  464. 

In  Cardwell  v.  Talbott  (Corp.  Ct.  of  Danville),  5  Va.  Law  Reg. 
182,  a  motion  was  brought  and  a  judgment  obtained  on  a  decree  of 
a  domestic  court  of  chancery,  and  no  question  seems  to  have  been 
made  as  to  the  right  to  substitute  a  motion  for  a  formal  action  in 
such  case.  But  see  quare  in  note  to  said  case  by  the  editor  of  the 
Law  Register;  and  such  a  conclusion  would  certainly  seem  to  be  in 
conflict  with  the  reasoning  in  the  opinion  in  W.  U.  Tel.  Co.  v.  Bright, 
90  Va.  778,  20  S.  E.  146,  as  well  as  with  the  principle  stated  ante, 
§  71,  that  a  domestic  judgment  is  of  such  high  dignity  that,  in  the 
Absence  of  statute,  debt  only  will  lie  on  it,  and  not  assumpsit.  Surely 
a  motion  is  not  of  higher  dignity  than  an  action  of  assumpsit. 


§   99      WHEN   MOTION  DOES  NOT  UE  UNDER  §  3211   OP  CODE         173 

"because  the  sum  demanded  is  certain,  and  not  because  the  cause 
of  action  arises  ex  contractu."33 

It  will  be  noted  that  in  both  the  case  of  Long  v.  Pence,  supra, 
and  W.  U.  Tel.  Co.  v.  Bright,  supra,  the  court  took  care  to  say 
that  a  motion  lay  to  recover  money  on  a  contract,  i.  e.,  money  due 
by  contract.  That  this  procedure  is  thus  limited  appears  from  the 
case  of  Wilson  v.  Dawson,34  in  which  it  was  held  that  a  motion 

33.  West.  Union  Tel.  Co.  v.  Bright,  90  Va.  778,  20  S.  E.  146. 

34.  9  Va.  690,  32  S.  E.  461.     The  court  in  this  case  says:     "There 
have  been  amendments  to  this  section  which  may  have  enlarged  its 
scope,  but  with  these  we  have  nothing  to  do;"  because  in  that  case 
the   motion  was   made   before   the   amendment.     The   reference   is   to 
Acts    1895-6,    p.    140,    giving    the    plaintiff   the    privilege,    in    any    case 
where  his  motion  is  founded  on  such  a  contract  that  an  action  of  as- 
sumpsit  li'ould  also  lie,  to  serve  an  account  and  file  an  affidavit,   and 
thus  avoid  a  writ  of  inquiry  of  damages   and  put   the   defendant  to 
a  sworn  defence  (see  §  96).     It  is  thought,  however,  that  the  amend- 
ment has  not  changed  the  law  in  this  particular,  and  that  the  rule 
announced  in  Wilson  v.  Dawson,  supra,  is  still  the  law.     As  said  by 
Prof.    Graves    in    his    Notes    on    Pleading    (new)    34,    note:      "As    as- 
sumpsit  lies  both  to  recover  money  on  a  contract,  and  also  for  un- 
liquidated   damages   for   the   breach   of  a   contract,   it   might   be   con- 
tended that  a  motion  is  now  allowed  to  recover  such   damages.     It 
is  believed,  however,  that  the  amendment  has  not  changed  the  pre- 
vious   law   on    this   point.      The    general  provision   as    to    motions    re- 
mains  unchanged;   and  it  is    only  when   by  virtue  of  it  a  motion  -is 
"brought,   when    also   assumpsit   would   lie,   that   the   amendment   pro- 
ceeds to  confer  on  the  plaintiff  an  additional  privilege." 

This  distinction,  however,  has  not  always  been  carefully  observed 
in  practice.  The  case  of  Duke  v.  N.  &  W.  R.  Co.,  went  to  the  Court 
of  Appeals  twice.  The  first  appeal  is  reported  in  106  Va.  152,  55  S. 
E.  548,  and  the  second  in  107  Va.  764,  60  S.  E.  96.  This  was  a  mo- 
tion for  judgment  for  damages  for  failure  to  receive  and  accept  goods 
sold,  and  such  damages  were  claimed  in  the  notice  eo  nomine.  No 
question  was  raised  as  to  the  propriety  of  the  proceeding  by  mo- 
tion on  the  first  appeal,  either  by  counsel  or  the  court.  On  the  sec- 
ond appeal,  it  was  assigned  as  error  that,  on  such  proceeding  by 
•motion  upon  notice,  the  trial  court,  under  the  holding  in  the  Wil- 
son v.  Dawson,  supra,  had  no  jurisdiction  in  the  manner  and  form 
in  which  it  was  invoked.  The  court  said:  "Whether  this  contention 
be  correct  or  not  cannot  now  be  considered,"  for  the  reason  that 
the  jurisdiction  of  the  circuit  court,  though  not  expressly  presented 
or  decided  on  the  former  writ  of  error,  was  necessarily  involved, 
and  was,  therefore,  res  judicata. 


174  PROCEEDINGS  BY  WAY  OF  MOTION  §    100 

will  not  lie  to  recover  damages  for  a  breach  of  contract,  or  the 
profits  which  the  plaintiff  would  have  made  if  he  had  been  per- 
mitted to  fill  his  contract,  as  such  damages  are  not  considered 
as  money  due  upon  contract,  and  the  remedy  by  motion  does  not 
extend  to  actions  which  sound  in  damages. 

§    100.    The  manner  of  making  defences  to  motions. 

Defence  may  be  made  either  by  formal  pleas,  or  by  an  in- 
formal statement  in  writing  of  the  grounds  of  defence. 

In  these  proceedings  by  motion  it  is  intended  that,  in  so  far  as 
possible,  all  formalities  and  technicalities  shall  be  done  away 
with.  And  this  policy  extends  to  the  modes  of  making  defence, 
as  well  as  to  the  notice  of  the  motion. 

Accordingly,  it  is  held  that  no  formal  pleas  are  necessary,  ex- 
cept in  cases  where  statutes  require  them,  but  that  the  defend- 
ant may  make  his  defence  by  an  informal  statement  in  writing 
of  the  grounds  of  his  defence.  This  statement  will  be  treated  as 
a  plea  or  pleas,  and  the  plaintiff  may  reply  thereto  with  like  in- 
formality. The  defendant  however  may  plead  formally  if  he 
chooses,  according  to  the  course  of  the  common  law,  and  this  is 
in  all  cases  the  better  practice.  But  in  every  case  an  issue  must 
in  some  way  be  made  up  on  the  record,  in  order  to  have  a  trial 
by  jury.35 

The  general  rule  on  this  subject  is  well  stated  in  Preston  v. 
Salem  Improvement  Co.36  In  this  case  the  question  was 
squarely  presented  as  to  whether  a  defendant,  in  a  motion  under 
§  3211,  could  claim  a  right  to  a  trial  by  a  jury,  without  tendering 
an  issue.  The  defendant  declined  to  plead  or  to  tender  an  issue 
in  fact,  claiming  the  right,  as  the  motion  was  a  summary  pro- 
ceeding, to  go  to  trial  without  any  formal  pleadings,  and  to  pro- 
duce orally,  in  the  progress  of  the  trial,  any  defences  he  might 
have.  The  court  declined  to  allow  a  jury  to  be  sworn  until  and 
unless  some  issue  of  fact  was  joined.  The  Court  of  Appeals  held 

35.  Preston  v.   Salem   Improvement   Co.,  91   Va.   583,  22   S.   E.  486, 
1  Va.  Law  Reg.  447,  and  note;   1  Va.  Law  Register  442;  4  Va.   Law 
Register  752;   Hall  v.   Ratliff,  93   Va.   327,  24  S.   E.   1011;   Supervisors 
v.   Dunn,  27   Gratt.  608. 

36.  91  Va.  583,  22  S.   E.  486,  1  Va.  Law  Reg.  447,  and  note. 


§    100      THE    MANNER    OF    MAKING   DEFENCES    TO    MOTIONS  175 

that  the  ruling  of  the  lower  court  was  correct,  saying :  "The  ob- 
ject of  §  3211  of  the  Code  was  to  afford  a  more  speedy  remedy 
for  the  enforcement  of  contracts,  but  it  was  not  contemplated 
that  all  the  rules  of  pleading  were  to  be  abrogated  thereby.  *  *  * 
The  better  practice  [italics  ours]  in  proceedings  by  motion  would 
be  to  make  up  the  issue  to  be  tried  by  the  jury  by  filing  such 
formal  plea  as  would  be  suitable  had  the  action  been  by  declara- 
tion, according  to  the  form  at  common  law.  Inasmuch,  however, 
as  the  object  of  this  proceeding  by  motion  under  §  3211  was  to 
give  suitors  a  plain  and  summary  proceeding  for  the  recovery 
of  judgments,  and  it  is  but  in  accordance  with  the  spirit  of  this 
flexible  proceeding  by  motion  to  permit  the  defendant  to  make 
his  defence  by  such  informal  pleas  or  statement  in  writing  as 
will  state  his  defence  and  make  up  the  issue  to  be  tried,  this  lat- 
ter practice  is  permissible,  except  in  all  cases  where  the  statute 
requires  the  plea  to  be  verified  by  affidavit.  In  such  cases  that 
requirement  of  the  statute  must  always  be  complied  with."37 

While,  as  a  general  rule,  the  pleadings  on  a  motion  for  a  judg- 
ment for  money  after  notice  may  be  of  a  very  informal  nature, 
this  is  not  so  where  statutes  require  otherwise,  as  under  §  3299 
of  the  Code,  but,  in  such  cases,  the  requirements  of  the  statute 
must  always  be  complied  wTith.38  It  would  thus  seem  that  where 
a  motion  is  made  on  a  sealed  instrument  and  the  defendant  de- 
sires to  rely  on  any  of  the  defences  enumerated  in  §  3299  of  the 
Code,  or  in  an \  case  where  the  defendant  has  an  unliquidated 

37.  See  notes.  1  Va.  Law  Register  442,  450,  4  Va.  Law  Register  752. 
However,  in  the  case  of  Bunch  v.   Fluvanna  County,  86  Va.  452,  11 
S.    E.    532,    the    court    said    of   a    motion    to    enforce    a    county   bond: 
"The  proceeding  was  a  mere  motion,  in  which   no  formal   pleadings 
are    required,    and    in    which,    therefore,    it    was    competent  for  the 
county  to  make,   ore   tcnus,  any   defence   that   could  be   appropriately 
made  by  plea  in   a  regular  action."     This  case   seems  to  be  in   con- 
flict with   Preston  z'.   Salem   Imp.   Co.,  supra.     See   comment   on   this 
case   in   4   Va.   Law   Register   752,   753.      See   also    M'Kinster  v.    Gar- 
rott,  3   Rand.   554;   Cecil  r.   Early.   10   Gratt.   198.   202. 

38.  Preston   v.    Salem    Improvement   Co.,  supra;   Saunders   v.    Bank 
of  Mecklenburg.   112   Va.  — ,    71    S.    E.   714;    Liskey  v.   Paul,   100  Va 
764,  42   S.    E.   875.     And    see    Newport    Xews.   etc.,    Ry.   Co.   v.   Bick- 
ford.   105   Va.   182.   52   S.   E.   1011;    Briggs   r.   Cook.   99   Va.   273,   38   S- 
E.    148. 


176  PROCEEDINGS  BY  WAY  OF  MOTION  §    100 

counterclaim  greater  in  amount  than  the  claim  asserted  by  the 
plaintiff  and  wishes  to  recover  the  excess,  he  can  only  do  so  by 
filing  a  formal  sworn  plea  under  the  above  section.  So,  if  he 
wishes  to  deny  his  signature  to  a  writing  which  the  notice  alleges 
lie  signed,  or  to  deny  a  partnership  or  incorporation  alleged  in 
such  notice,  it  would  seem,  under  the  above  rule,  that  the  proper 
.affidavits  must  be  made  and  filed  under  the  statutes;39  and,  as 
§  3278  provides  that  no  plea  of  non  est  factum  shall  be  received 
unless  it  be  verified  by  oath,  it  would  seem  that  where  a  defend- 
ant to  a  motion  on  a  sealed  instrument  wishes  to  make  a  defence 
which,  if  formally  plead,  would  be  shown  under  non  est  factum, 
he  must  verify  such  defence  by  affidavit  duly  filed.40 

It  has  been  pointed  out  that  the  better  practice  is  to  file  formal 
pleas  such  as  non  assumpsit,  nil  debet,  non  est  factum,  etc.,  just 
.as  would  be  done  to  a  common-law  declaration,  and  it  will  be 
found  by  a  reference  to  the  cases  cited  in  the  margin  that,  in 
spite  of  the  informality  permitted,  the  usual  practice  has  been 
to  file  formal  pleas.41 

39.  See   Code,   §§   3279,   3280.     And   in    Gordon  v.    Funkhouser,    100 
Va.  675,  42  S.  E.  677,  the  defendant  filed  an  affidavit  denying  a  part- 
nership and  signature  alleged  in  a  notice  of  a  motion,  as  well   as  a 
plea  of  non  est  factum. 

40.  See,  however,  Bunch  v.  Fluvanna  County,  86  Va.  452,  10  S.  E. 
532,    where    on    a    motion    to    enforce    a    county  bond,  a  jury  being 
waived,    the    principal    defence    set    up    by    the    county   was    that    the 
bond   was    executed    and    issued   without   lawful    authority,    and   was, 
therefore,  void.     The   plaintiffs    argued   that   as   the   bond   was   regu- 
lar on  its  face,  and  there  was  no  affidavit  putting  its  proper  execu- 
tion in  issue,  parol   evidence  on   the   subject  was   inadmissible.     But 
the  court  said  that  this  was  a  mistaken  view,  that  no  formal  plead- 
ings were  required  on   a  notice,  and  that  it  was   competent  for  the 
county  to  make,   ore  tenus,  any  defence   that   could   be   appropriately 
made  by  plea  in  a  regular  action.     This   holding  is   in   conflict  with 
the   rule   announced   in  the   cases   above    cited,   and   the   court   appar- 
ently  overlooked   the    fact    that,    in    a    regular   action,    it   would    have 
been  necessary  to  verify  the  plea  by  affidavit.     The  plea  is  one  thing; 
the  verification  by  oath   of  th,e   defence   another.      In   Supervisors  v. 
Dunn,  27  Gratt.  615,  the  defendants  to  a  motion  on  a  sheriff's  bond 
attacked  its  validity  and  filed  affidavits   in   support  of  their  defence, 
and  the   court   said:     "The   fact  is,   that   these   affidavits   are   nothing 
more  than  pleas  of  non  est  factum  in  disguise." 

41.  In   the   following  cases   of  motions   formal  pleas   were   filed   by 
the     defendant;       Supervisors     v.     Dunn,    27     Gratt.    608;    Blanton    v. 


§    100      THE   MANNER   OF    MAKING   DEFENCES   TO    MOTIONS  177 

Instances  of  Informalities  Held  Not  Reversible  Error. — As  il- 
lustrations of  the  indulgence  with  which  the  courts  view  the  pro- 
cedure in  these  actions  by  way  of  motion,  the  following  cases  are 
instructive : 

In  Briggs  v.  Cook,42  a  proceeding  by  motion  to  recover  a 
judgment  for  money,  the  defendant  pleaded  non  assumpsit  and 
a  special  plea  of  set-off  under  §  3299  of  the  Code.  Issue  was 
taken  on  the  plea  of  non  assumpsit,  but  no  replication  was  filed 
to  the  special  plea,  and  no  evidence  offered  thereunder.  The 
jury  was  sworn  to  try  the  issues  joined.  After  verdict  for  the 
plaintiff,  the  defendant  moved  to  set  it  aside  because  no  issue 
had  been  joined  on  the  special  plea.  The  court  held  that  the 
motion  to  set  the  verdict  aside  came  too  late ;  that  in  a  proceed- 
ing by  motion  much  greater  latitude  is  allowed  in  pleading  than 
in  common-law  actions ;  that  the  defendant  had  the  right  to  de- 
mand a  replication  and,  having  failed  to  do  so,  he  is  deemed  to 
have  consented  to  a  trial  on  the  pleadings  as  they  were. 

In  Liskey  v.  Paul,43  which  was  a  proceeding  by  motion  to  re- 
cover on  three  negotiable  notes  and  one  bond,  the  statute  of  limi- 
tations was  pleaded  to  the  notes  sued  on,  but  not  to  the  bond ;  no 
plea  at  all  being  offered  as  to  the  bond.  The  court  held,  how- 
ever, that  it  was  clear  that  both  the  parties  and  the  court  treated 
the  plea  as  going  to  all  the  demands  sued  on,  and,  the 
bond  being  actually  barred  by  the  statute  of  limitations,  the  fail- 
ure to  plead  as  to  the  bond  was  not  reversible  error. 

The  court  said:  "The "proceeding  by  way  of  motion  on  notice 
is  very  informal,  and  was  intended  to  do  away  with  the  necessity 
of  formal  pleading  except  in  cases  where  provision  is  made  by 

Com.,  91  Va.  1,  20  S.  E.  884;  Morotock  Ins.  Co.  v.  Pankey,  91  Va. 
259,  21  S.  E.  487;  Hall  v.  Ratliff,  93  Va.  327,  24  S.  E.  1011;  Briggs  v. 
Cook,  99  Va.  273,  38  S.  E.  148;  Clarke  v.  Sleet,  99  Va.  3818,  38  S.  E. 
183;  Gordon  v.  Funkhouser,  100  Va.  675,  42  S.  E.  677;  Liskey  v.  Paul, 
100  Va.  764,  42  S.  E.  875;  Reed  &  McCormick  v.  Gold,  102  Va.  37, 
45  S.  E.  868;  Rocky  Mount  Trust  Co.  v.  Price,  103  Va.  298,  49  S. 
E.  73;  Newport  News,  etc.,  R.  Co.  v.  Bickford,  105  Va.  182,  52  S. 
E.  1011;  Stimmell  r.  Benthall,  108  Va.  241,  60  S.  E.  765;  Saunders  v. 
Bank  of  Mecklenberg,  112  Va.  — ,  71  S.  E.  714. 

42.  99  Va.  273,  38  S.   E.  148. 

43.  100  Va.  764,  42  S.   E.  875. 

—12 


178  PROCEEDINGS  BY  WAY  OF  MOTION  §    100 

statute  requiring  formal  pleadings,  as  under  §  3299  of  the  Code. 
In  a  case  like  this,  where  it  is  clear  that  the  parties  and  court 
treated  the  plea  of  the  statute  of  limitations  as  applicable  to  all 
of  the  claims  sued  on,  and  all  were  in  fact  barred  by  the  stat- 
ute, and  the  court  so  held,  its  judgment  will  not  be  reversed, 
though  it  were  technically  erroneous." 

So,  in  the  recent  case  of  Stimmell  v.  Benthall,44  the  court  held 
that  where  the  plaintiff  in  a  proceeding  by  way  of  motion  in 
answer  to  a  plea  of  set-off,  filed  a  replication  which  set  up  two 
separate  and  distinct  replies,  but  the  defendant,  without  objec- 
tion, took  issue  thereon,  and  the  lower  court,  after  hearing  ar- 
guments of  counsel,  rendered  judgment  on  the  issue,  objection 
to  said  replication  for  duplicity  could  not  thereafter  be  made  in 
the  Court  of  Appeals  for  the  first  time,  though  this  objection,  if 
it  had  been  made  in  the  trial  court,  would  not,  perhaps,  have  been 
without  force. 

Plaintiff  Should,  as  a  Rule,  Call  for  Grounds  of  Defence. — 
Section  3249  of  the  Code  provides :  "In  any  action  or  motion, 
the  court  may  order  a  statement  to  be  filed  of  the  particulars  of 
the  claims,  or  of  the  ground  of  defence;  and,  if  a  party  fail  to 
comply  with  such  order,  may,  when  the  case  is  tried  or  heard, 
exclude  evidence  of  any  matter  not  described  in  the  notice,  dec- 
laration, or  other  pleading  of  such  party,  so  plainly  as  to  give  the 
adverse  party  notice  of  its  character."  Of  course,  the  above 
statement  of  grounds  of  defence  must  be  in  meriting,  as  only  a 
written  statement  could  be  filed. 

By  reason  of  the  informality  of  the  pleading  to  a  motion,  the 
above  statute  is  particularly  useful  in  cases  of  this  character, 
and  the  plaintiff,  in  cases  where  the  pleas  or  statement  of  de- 
fence by  the  defendant  do  not  fully  and  clearly  disclose  the  ac- 
tual defence,  should  call  for  a  statement  of  the  grounds  of  de- 
fence, and  thus  avoid  being  taken  by  surprise.  It  would  be  ad- 
visable for  him  to  do  so  in  every  case.45 

By  Demurrer. — Where  the  objection  to  the  notice  is  that, 
while  sufficient  to  withstand  a  demurrer,  it  is  so  general  -or  in- 
definite in  its  terms  that  the  defendant  cannot  feel  sure  that  it 

44.  108  Va.  141,  60  S.  E.  765. 

45.  See  1  Va.  Law  Register  442;  4  Idem  753. 


§    100      THE    MANNER   OF    MAKING   DEFENCES   TO    MOTIONS  179 

completely  informs  him  of  the  plaintiff's  claim,  the  defendant 
may  protect  himself  against  surprise  by  calling  for  a  bill  of  par- 
ticulars under  the  statute  discussed  in  the  last  heading.  Thus 
the  court  said,  in  Union  Central  Life  Insurance  Co.  v.  Pollard:46 
"If  the  defendant  desires  to  have  more  specific  information  of 
the  plaintiff's  claim  than  is  contained  in  the  notice,  he  has  the 
right  to  move  the  court  to  order  the  plaintiff  to  file  a  statement 
of  the  particulars  of  his  claim.  If  the  court  makes  such  order, 
and  the  plaintiff  fails  to  comply  with  it,  the  court  may  exclude 
evidence  of  any  matter  not  so  plainly  described  in  the  notice  as 
to  give  the  defendant  information  of  its  character.  Code, 
§  3249." 

But  the  defendant  need  only  resort  to  the  above  procedure  in 
cases  where  the  notice  states  a  good  cause  of  action,  but  is  in 
some  feature  of  calculation  or  detail  indefinite,  e.  g.,  where  the 
motion  is  for  money  due  by  open  account  for  work  and  labor 
done,  or  goods  furnished,  and  the  notice  does  not  particularize 
the  details  of  the  work  and  labor,  or  the  items  of  the  goods.  The 
notice  must  set  out  matter  sufficient  to  maintain  the  action,  and, 
whether  or  not  it  does  so,  is  tested  by  a  demurrer  to  the  no- 
tice.47 Thus,  in  Security  Loan  &  Trust  Co.  v.  Fields,48  it  was 
held  that  in  a  proceeding  by  motion  against  the  endorser  of  a 
negotiable  note  the  notice  must  contain  such  allegations  of  pre- 
sentment for  payment  and  notice  of  dishonor  to  the  endorser  as 
will  fix  a  liability  upon  him  for  the  payment  of  the  note,  else 
the  notice  will  be  bad  upon  demurrer.  The  defendant  is  not 
obliged  to  call  for  a  bill  of  particulars  in  such  case.  The  court 
in  the  case  cited  distinguishes  Union  Central  Life  Ins.  Co.  v. 
Pollard,  supra,  saying  that  in  the  latter  case  the  objection  raised 
to  the  notice  (the  admissibility  in  evidence  of  certain  foreign 
statutes)  was  "a  question  not  raised  by  the  demurrer  to  the  no- 
tice," and  that  this  case  is  not  in  conflict  with  the  settled  doc- 
trine that  a  notice  which  does  not  set  out  sufficient  matter  to 
maintain  the  action  is  cemurrable. 

However,  the  demurrer  to  the  notice  only  raises  the  question 

46.  94    Va.    151,    26    S.    E.    421. 

47.  Security  Loan  &  Trust  Co.  v.  Fields,  110  Va.  827,  67  S.  E.  342. 

48.  Supra. 


180  PROCEEDINGS  BY  WAY  OF  MOTION  §    101 

as  to  whether  or  not  there  is  matter  in  the  notice  sufficient  to 
maintain  the  action.49 

Pleas  in  Abatement. — A  notice  of  motion  for  judgment  on  a 
note,  if  served  before  the  liability  of  defendant  has  matured,  is 
subject  to  a  plea  in  abatement,  the  same  as  a  declaration  prema- 
turely filed  would  be;50  and  it  would  seem  plain  that  pleas  in 
abatement  to  notices  may  be  filed  under  all  circumstances 
where — taking  into  consideration  the  fact  that  the  notice  takes 
the  place  of  both  the  declaration  and  writ,  and  hence  there  can 
be  no  such  plea  for  a  variance  between  declaration  and  writ 
as  in  common-law  actions — they  would  be  applicable  (as  to 
the  jurisdiction  of  the  court,  the  disability  of  the  parties  to 
sue  or  be  sued,  etc.),  in  the  same  manner  as  they  would  be 
to  more  formal  actions  at  law.  Of  course,  they  should  be 
filed  before  the  defendant  has  demurred,  pleaded  in  bar,  or 
filed  a  statement  of  his  defence  (which,  as  we  have  seen,  is 
allowed  on  motions  in  lieu  of  formal  pleading).51 

§  101.   Against  whom  judgment  may  be  given  on  motion. 

Section  3212  of  the  Code  provides  that:  "A  person  entitled 
to  obtain  judgment  for  money  on  motion,  may,  as  to  any,  or 
the  personal  representatives  of  any  person  liable  for  such  money, 
move  severally  against  each  or  jointly  against  all,  or  jointly 
against  any  intermediate  number ;  and  when  notice  of  his 
motion  is  not  served  on  all  of  those  to  whom  it  is  directed, 
judgment  may  nevertheless  be  given  against  so  many  of  those 
liable  as  shall  appear  to  have  been  served  with  the  notice: 
Provided,  that  judgment  against  such  personal  representatives 
shall,  in  all  cases,  be  several.  Such  motions  may  be  made  from 
time  to  time  until  there  is  judgment  against  every  person  liable, 
or  his  personal  representative."52 

49.  Morotock  Ins.  Co.  v.  Pankey,  91  Va.  259,  21  S.  E.  487;  Security 
Loan  &  Trust  Co.  v.  Fields,  supra. 

50.  Schofield  v.   Palmer,   134  Fed.  753,  11  Va.  Law   Reg.  31. 

51.  See  Code,  §§  3259,  3260.     In   Morotock  Ins.  Co.  v.   Pankey,  91 
Va.   259,    21    S.    E.   487,    the    objection   that   the   notice    had   not   been 
served  as   required  by  law  was  made  by  motion  to   dismiss  the  action. 

52.  See   4   Min.    Inst.   1320   for  comment  on   this   statute.     Any   ex- 
tended  discussion  of  the  above   statute  here  would  be  out  of  place, 
as  the  subject  belongs  more  properly  to  a  discussion  of  parties.     See 
ante,  §  48. 


§    102  THE  TRIAL  OF  THE   MOTION  181 

Under  the  above  section  it  has  been  held53  that,  on  a  motion 
against  a  principal  and  his  sureties,  a  confession  of  judgment 
by  the  principal  does  not  merge  the  cause  of  action  against 
the  sureties,  and  judgment  may  be  rendered  against  the  latter 
at  a  succeeding  term  of  the  court;  and  that  the  plaintiff's 
rights  are  not  affected  by  suffering  a  nonsuit,  but  he  may  at 
a  subsequent  term  renew  his  action  or  motion  on  the  same 
cause  of  action  against  any  or  all  of  the  parties  against  whom 
he  has  not  already  obtained  judgment. 

§   102.    The  trial  of  the  motion. 

In  general,  it  may  be  said  that  a  motion  is  tried  precisely 
like  any  other  action  at  law.  It  is  provided  by  §  3213  of  the 
Code  that:  "On  a  motion,  when  an  issue  of  fact  is  joined, 
and  either  party  desires  it,  or,  when  in  the  opinion  of  the 
court,  it  is  proper,  a  jury  shall  be  impaneled,  unless  the  case 
be  one  in  which  the  recovery  is  limited  to  an  amount  not 
greater  than  twenty  dollars,  exclusive  of  interest." 

It  will  be  recalled  that  it  has  been  stated  earlier  in  this 
chapter  that,  when  a  motion  is  made  under  §  3211,  in  order 
to  entitle  the  defendant  to  a  trial  by  jury  an  issue  must  be  made 
up;  and  that  this  issue  may  be  tendered  by  a  formal  plea, 
or,  in  most  cases,  by  an  informal  statement  in  writing  of  the 
grounds  of  defence,  but  that  a  mere  oral  statement  of  the 
grounds  of  defence  is  not  sufficient.54 

In  most  cases  the  motion  is  called  up  on  the  day  to  which 
the  notice  has  been  given  and  judgment  then  and  there  asked 
and  granted,  unless  the  motion  is  contested,  when  a  date  is 
set  for  its  trial,  or,  if  both  sides  are  ready,  the  trial  is  forth- 
with held.  Mr.  Barton  says:55  "If  there  be  no  defence  to  the 
motion  it  is  treated  just  as  a  suit  to  which  there  is  no  plea, 
and  a  judgment  may  be  rendered  thereon  by  default,  or  else 

53.  Gaboon  v.   McCulloch,   92   Va.   177,   23   S.    E.   225.     See   also   §§ 
3395,  3396,  of  the  Code.     Rocky  Mount  Trust  Co.  v.   Price,   103  Va. 
298,  49  S.  E.  73,  is  a  recent  case  where  the  proceedings  were  under 
§  3212  of  the  Code. 

54.  Preston  v.  Salem  Imp.  Co.,  91  Va.  583,  22  S.  E.  486,  1  Va.  Law 
Reg.  447,  and  note.     See  ante,  §  100. 

55.  2   Barton's   Law  Practice   1047. 


182  PROCEEDINGS  BY  WAY  OF  MOTION  §    103 

if  there  be  not  enough  in  the  papers  to  justify  a  judgment  a 
writ  of  enquiry  Will  be  first  ordered,  and  executed  either  by 
the  court  or  a  jury." 

The  above  statement  would,  perhaps,  be  more  in  accord  with 
the  actual  practice  were  it  amended  so  as  to  state  that  a  writ 
of  inquiry  of  damages  is,  in  fact,  never  ordered  on  a  motion 
(there  being  no  rules  taken  on  motions).  What  is  done  where 
there  is  no  contest,  and  the  motion  is  on  some  cause  of  action 
which  does  not  prove  itself  (as  a  note  or  bond  would),  is 
for  the  plaintiff  to  swear  his  witnesses,  prove  his  case,  and 
take  judgment.  This  is  in  the  nature  of  an  execution  of  a 
writ  of  inquiry,  but  no  such  writ  is  actually  ordered  or  shown 
on  the  order  book. 

It  is  provided  by  §  3062  of  the  Code  that  at  a  special  term 
"any  motion  for  a  judgment  *  *  *  may  be  heard  and  de- 
termined whether  it  was  pending  at  the  preceding  term  or  not." 
And  in  Wooten  v.  Bragg,56  it  was  held  that  a  notice  of  motion 
upon  a  forthcoming  bond  given  to  a  regular  term,  which  is 
not  held,  may  be  heard  at  a  special  term ;  and,  by  §  3054  of 
the  Code,  a  motion,  where  the  defendant  does  not  appear  and 
demand  a  trial  by  jury,  may  be  heard  and  determined  even 
at  a  term  set  aside  by  a  corporation  or  city  court  for  the 
exclusive  trial  of  criminal  and  chancery  cases. 

§   103.   Motion  to  recover  money    in    general  otherwise 
than  under  §  3211  of  the  Code. 

The  statutes  of  this  State  in  many  instances  provide  for  a 
summary  remedy  by  motion  in  various  cases  where-  it  is  con- 
sidered that  justice  and  considerations  of  dispatch  require  the 
application  of  this  simple  and  speedy  remedy.  Among  other 
instances,  the  procedure  by  motion  is  prescribed  in  the  follow- 
ing cases :  For  debts  and  fines  due  the  State  ;57  against  certain 
bonded  officers  for  a  failure  to  properly  discharge  their  duties;58 

56.  1   Gratt.  1. 

57.  Debts   due   State,   Code,   §§   681-685.     Fines,   where   no   corporal 
punishment  is  prescribed,   Code,   §§   712-714. 

58.  Against    delinquent   treasurers    and   their   sureties,   Code,    §   615, 
§§   863-865.     Against   officer   for   not   making  proper   return   or   proc- 
ess, Code,   §§   900-901;   for  various   forms   of  notices   of  motions   un- 


§    103  MOTION   TO   RECOVER    MONEY   IN   GENERAL,  183 

on  certain  bonds  taken  as  incidents  to  actions  at  law,  such  as 
forthcoming  bonds  ;59  by  and  between  individuals  in  certain 
special  cases,  as  e.  g.,  attorney  and  client,  and  principal  and 
surety.60 

And  it  is  provided  by  §  3210  of  the  Code  that:  "The  court 
to  which,  or  in,  or  to  whose  clerk  or  office,  any  bond  taken 
by  an  officer,  or  given  by  any  sheriff,  sergeant,  or  constable, 
is  required  to  be  returned,  filed  or  recorded,  may,  on  motion 
of  any  person,  give  judgment  for  so  much  money  as  he  is 
entitled,  by  virtue  of  such  bond,  to  recover  by  action." 

The  motions  referred  to  in  this  section  are  governed  by 
the  same  general  rules,  as  to  liberal  construction  given  to  the 
notice,  by  whom  such  notice  is  served,  the  manner  of  making 
defences,  the  trial  of  the  motion,  and  the  freedom  of  all  the 
proceedings  thereunder  from  technicality,  as  are  the  motions 
under  §  3211  of  the  Code  heretofore  discussed,  save  only  in 
instances  where  the  statutes  giving  the  remedies  in  such  cases 
specifically  require  otherwise.  A  number  of  the  cases  cited  in 
the  discussion  of  §  3211  to  illustrate  general  principles,  were 
cases  decided  under  statutory  motions  allowed  by  other  sections 
of  the  Code. 

As  to  the  length  of  the  notice  to  be  given,  of  course,  where 

der  the  last  section,  see  4  Min.  Inst.,  1771,  1772.  Against  sheriffs 
and  their  deputies  for  not  turning  over  money  collected  to  person 
entitled  thereto,  Code,  §  909;  for  form  of  notice,  see  4  Min.  Inst. 
1773.  By  Sheriffs  against  their  deputies,  Code,  §§  910-912;  for  forms 
of  notices,  see  4  Min.  Inst.  1774.  Against  sheriffs,  constables,  and 
their  sureties  for  failure  to  account  for  fees  collected,  Code,  §  3519; 
for  form  of  notice  of  motion  against  an  officer  for  clerk's  fees  col- 
lected, see  4  Min.  Inst.  1770.  For  failure  of  officer  to  make  due  re- 
turn of  an  execution  issued  by  a  justice,  Code,  §  2952.  For  failure 
of  justice  to  pay  to  clerk  fines  collected  by  him,  Code,  §  723. 

59.  On  forthcoming  bonds,  Code  §§  3620,  3625.     For  forms  of  no- 
tice, see  note  to  §  3620,   Pollard's  Code.     For  full  treatment  of  mo- 
tions on  forthcoming  bonds,  see  2  Barton's   Law  Practice  1049-1067; 
4  Min.   Inst.   1321,   1322. 

60.  By  client  against  attorney  at  law  for  failure  to  pay  over  money 
collected,   on   demand,   Code,   §   3200;   for  form  of  notice,  see  4   Min. 
Inst.  1770.     By  surety  against  principal  for  money  paid,  Code,  §  2893; 
for   form   of   notice,    see   4   Min.    Inst.    1769.     .By   one    surety   against 
another,  Code,  §  2895;  for  form  of  notice,  see  4  Min.  Inst.  1770. 


184  PROCEEDINGS  BY  WAY  OF  MOTION  §    103 

the  particular  statute  giving  the  remedy  prescribes  the  length 
of  the  notice  the  provisions  of  such  statute  must  be  strictly 
followed.  Such  provisions  in  the  statutes  are  rare,  however, 
and  most  cases  are  governed  by  §  3209  of  the  Code,  which 
declares  that:  "In  any  case  wherein  there  may  be  judgment  or 
decree  for  money  on  motion,  such  motion  shall  be  after  ten 
days'  notice,  unless  some  other  time  be  specified  in  the  sec- 
tion or  statute  giving  such  motion;"  and,  as  said  by  Prof. 
Minor:61  "In  prudence,  the  notice  should  be  in  writing,  but  it 
seems  to  be  in  general  not  indispensable."  In  practice,  however, 
a  written  notice  is  almost  invariably  given. 

So,  also,  it  may  be  said  of  the  motions  now  under  discussion 
that:  "The  motion  should  be  made  on  the  day  to  which  the 
notice  is  given ;  or  at  least  docketed  on  that  day,  and  then 
regularly  continued  from  that  day  until  the  day  on  which  it 
is  heard  by  the  court;  and  if  not  thus  regularly  continued,  as  if, 
without  the  defendant's  consent,  it  be  continued  from  the  June 
until  the  August  term,  passing  by  the  intermediate  July  term, 
it  is  a  discontinuance,  and  puts  the  motion  out  of  court."62 

61.  4  Min.  Inst.  1318;  2  Barton's  Law  Practice  1043. 

62.  4  Min.  Inst.  1320;  2  Barton's  Law  Practice    1046;      Parker      v. 
Pitts,  1  H.  &  M.  4;  Amis  v.  Koger,  7  Leigh  221. 


CHAPTER  XII. 
ACTION  OF  ACCOUNT. 

§  104.  Nature  of  action,  and  general  rules  applicable  thereto. 
§  105.  Superseded  by  bill  in  equity. 

§   104.     Nature   of  action,   and  general  rules  applicable 
thereto. 

The  common-law  action  of  account,  or  account-render,  is 
an  ex  contractu  action,  supposed  to  be  founded  on  a  contract^ 
express  or  implied.1  It  was  anciently  employed  to  adjust  and 
settle  mutual  accounts  where  there  was  some  privity  or  mutual 
confidence  existing  between  the  parties,  and  its  object  was  to 
recover  the  balance  ascertained  to  be  due.2  This  privity  might 
be  either  in  fact  (as  in  case  of  partners,  bailiffs,  receivers,  or 
principals),  or  in  law  (as  in  case  of  guardians  in  socage).3 

It  was  a  very  technical,  dilatory,  and  unsatisfactory  mode 
of  relief.  There  was  a  preliminary  judgment  that  the  defend- 
ant should  account  (quod  computet),  after  such  judgment  to 
account  the  case  was  referred  to  auditors  to  take  the  account, 
and  the  final  judgment  (quod  recuperet}  was  rendered  on  the 
report  of  the  auditors.4 

The  procedure  in  this  action,  and  especially  before  the  auditors, 
was,  as  Prof.  Minor  says,  so  "intolerably  tedious,  expensive 
and  inconvenient,"5  that  the  action  is  practically  obsolete,  and, 
as  said  by  Mr.  Barton,6  "is  so  little  used  as  scarcely  to  be 
known  in  practice."  However,  the  action  may  still  be  brought 
in  this  State,  and,  by  statute,7  certain  instances  where  it  may 

1.  1  End.  L.  &  P.  764. 

2.  4   Min.   Inst.   427,   552. 

3.  4  Min.  Inst.  427;  1   Encl.  L.   &  P.  764. 

4.  4   Min.    Inst.    1468-1469;     1     Encl.     L.     &    P.     768-769;    Bispham's. 
Principles  of  Equity,  §  481. 

5.  4  Min.  Inst.  1469,  1467. 

6.  1    Barton's    Law    Practice    176.      See    also    1    Encl.    L.    &   P.    763; 
Stephen's  Pleading,   §   77. 

7.  Code,    §    3294,    is    as    follows:      "An    action    of    account    may   be 
maintained  against  the  personal  representative  of  any  guardian,  bail- 
iff, or  receiver,  and  also  by  one  joint  tenant   or  tenant  in   common, 
or   his   personal    representative,    against   the    other   as    bailiff,    for   re- 


186  ACTION   OF   ACCOUNT  §    105 

be  maintained  are  enumerated.  It  should  be  noted  of  this 
statute  that  "The  statutes  authorizing  the  action  in  particular 
cases  are  regarded  as  in  aid  of  the  action  and  extending  the 
remedy,  and  not  as  limiting  it  to  the  cases  enumerated."8 

The  declaration  in  the  action  was  rather  like  a  bill  in  equity 
for  an  accounting,  save  that  it  did  not  ask  for  an  account  to 
be  taken,  but  concluded,  as  other  declarations  at  law,  with  a 
demand  for  damages.  The  theory  of  the  action  was  not  that 
the  defendant  was  indebted  to  the  plaintiff,  but  that  he  was 
obliged  to  account,  and  the  judgment  might  be  for  more  than 
was  asked  in  the  declaration.9 

§   105.    Superseded  by  bill  in  equity. 

As  has  already  been  said,  this  action  is  obsolete  and  not 
used.  To  quote  from  Prof.  Minor:  "In  practice  the  bill  in 
chancery  has  quite  superseded  the  action  of  account,  being  not 
only  applicable  wherever  the  accounts  are  mutual  (although 
there  be  no  privity  between  the  parties),  and  in  all  equitable 
claims  arising  out  of  trusts,  and,  therefore,  in  a  wider  range 
of  cases  than  the  action  at  law,  but  being  also  a  much  more  speedy 
and  effective  remedy."10  The '  authorities  are  in  accord  that 
the  remedy  by  suit  in  equity  for  an  accounting  is  a  better, 
speedier,  and  more  convenient  remedy,  applying  to  more  cases 
than  did  the  common  law  action  of  account,  and  that  it  is 
applicable  to  every  case  where  the  action  of  account  lay  at 
common  law.11 

ceiving  more  than  comes  to  his  just  share  or  proportion,  and  against 
the  personal  representative  of  any  such  joint  tenant  or  tenant  in 
common." 

8.  1    Encl.    L.    &    P.    764. 

9.  1  Encl.  L.  &  P.  767-768;  Stephen's  Pleading,  §  77.     For  form  of 
declaration,  see  4  Min.  Inst.  1706,  1707;  1  Barton's  Law  Practice  372. 
For  full  treatment  of  the  common-law  action  of  account,  see  1  Encl. 
L.  &  P.  763-769;  4  Min.   Inst.   165,  427,  552,  585,  1468-1469;   1   Barton's 
Law    Practice    175-176,    372;    Graves'    Notes    on    Pleading    (new)    21; 
Stephen's   Pleading,   §   77;    Bispham's   Principles   of    Equity,   §   481. 

10.  4   Min.    Inst.    427.      See    also    Stephen's    Pleading,    §    77;    1    Bar- 
ton's Law  Practice,  176. 

11.  4    Min.    Inst.    1467;    Bispham's    Principles    of    Equity,    §    484;    1 
Encl.   L.   &  P.   745,   746;    Huff  v.  Thrash,   75   Va.   546. 


CHAPTER  XIII. 

UNLAWFUL  ENTRY  OR  DETAINER  AND  FORCIBLE  ENTRY. 

f  106.  Nature  and  object  of  action. 

;§  107.  Plaintiff's    title. 

3  108.  Pleadings. 

§  109.  Contrasted  with  ejectment. 

$  110.  Statute  of  limitations. 

:§  111.  How  possession  of  premises  recovered  from  tenant  in  default 

for  rent. 

"§  112.  When  proceeding  to  be  before  justice  of  the  peace. 

§  113.  Right  of  appeal. 

§   106.    Nature  and  object  of  action. 

This  action  is  of  purely  statutory  origin  and  not  common 
law,  and  is  given  to  recover  the  possession  only  of  real  prop- 
erty, and  not  damages.  It  is  therefore  a  real  action.  The 
object  is  to  protect  an  actual  possession  against  an  unlawful 
invasion.  The  entry  of  the  owner  is  unlawful  if  forcible,  and 
the  entry  of  any  other  person  is  unlawful,  whether  forcible 
or  not.  If,  therefore,  the  tenant  should  hold  over  his  term 
without  consent  of  the  landlord,  the  remedy  of  the  landlord 
is  by  an  action  of  unlawful  detainer.  He  cannot  forcibly  turn 
the  tenant  out,  and  if  he  does,  the  tenant  may  bring  his 
action  of  forcible  entry  against  the  landlord  and  thereby  restore 
Tiis  possession.  As  against  forcible  or  unlawful  entry,  the 
purpose  of  the  statute  is  to  protect  the  actual  possession, 
whether  rightful  or  wrongful,  and  if  the  defendant  has  entered 
either  forcibly  or  unlawfully,  the  plaintiff  is  entitled  to  recover 
regardless  of  his  right  to  the  possession,  if  he  in  fact  had 
actual  possession.  The  action  must  be  brought  within  three 
years  after  such  forcible  or  unlawful  entry.  If,  however,  the 
action  be  for  unlawful  detainer,  its  object  and  purpose  is  to 
try  the  right  of  possession.  Here  the  defendant  has  actual  pos- 
session, but  is  not  entitled  to  hold  it.  Some  one  else  is  en- 


188  UNLAWFUL   ENTRY   OR   DETAINER  §    107 

titled   to  the  possession  as   against  him.     The  purpose  of  the 
action  in  this  instance  is  to  try  the  right  of  possession.1 

§  107.    Plaintiff's  title. 

The  Virginia  statute  gives  the  right  of  action  to  the  party 
turned  out  of  possession  "no  matter  what  right  or  title  he  had 
thereto."2  The  question  involved  in  the  case  is  not  one  of 
title  at  all,  but  of  possession  or  the  right  of  possession  as  the 
case  may  be.  One  who  has  no  title  and  no  right  of  possession, 
for  example,  a  tenant  holding  over  after  his  term,  if  in  actual 
possession  may  maintain  forcible  or  unlawful  entry  against  any 
one  forcibly  or  unlawfully  depriving  him  of  his  possession. 
The  action  lies  wherever  trespass  would  lie,  and  sometimes 
where  it  would  not.  The  real  owner  may  enter  even  with 
force  if  he  has  the  right  of  entry  without  committing  a  tres- 
pass, but  he  may  be  turned  out  for  a  forcible  entry.  When 
the  plaintiff  shows  that  he  has  been  turned  out  by  force  or 
by  one  having  no  right  to  do  so,  he  has  made  out  his  right 
of  restitution  which  cannot  be  defeated  by  any  evidence  in 
regard  to  title,  or  right  of  possession.3  The  possession  which 
will  maintain  the  action,  however,  is  not  confined  to  actual  occu- 
pancy or  enclosure,  but  is  any  possession  which  is  sufficient  to 
sustain  an  action  of  trespass.  An  actual  possession  of  a  part 
of  a  tract  of  land  under  a  bona  fide  claim  or  color  of  title  to 
the  whole  is  such  a  possession  of  the  whole  or  so  much  thereof 
as  is  not  in  adverse  possession  of  others  as  will  sustain  the 
action.  The  title  alone  draws  after  it  possession  of  property 
not  in  the  adverse  possession  of  another.  It  is  essential,  how- 
ever, that  the  plaintiff,  in  unlawful  detainer,  should  have  actual 
possession,  or  the  right  to  the  possession,  and  that  the  defendant 
should  be  the  wrongdoer.4  Where  the  action  is  for  a  forcible 

1.  Code,  §  2716,  and  notes;  4  Min.   Inst.  559;  Olinger  v.  Shepherd, 
12   Gratt.   471;    Davis  v.   Mayo,   82   Va.   97;    Mears  v.   Dexter,    86   Va. 
828,  11  S.  E.  538;  note  to  Dobson  v.  Culpepper,  23  Gratt.    (Va.   Rep. 
Ann.)   352. 

2.  Code,   §  2716. 

3.  Olinger  v.  Shepherd,  supra. 

4.  Olinger  v.   Shepherd,  supra;   Moore  v.   Douglas,   14   W.   Va.   708, 
732;   Storrs  v.  Frick,  24  W.  Va.  606,  608. 


§    108  PLEADINGS  189 

entry,  it  is  said  that  force  is  an  essential  element  of  the  action; 
that  a  mere  trespass  will  not  sustain  it,  and  that  there  must 
be  the  element  of  force  or  violence  or  the  terror  of  the  oc- 
cupant.5 If  the  plaintiff  relies  upon  actual  possession  as  his 
right  to  recover,  the  possession,  it  is  said,  must  be  of  suffi- 
ciently long  standing  to  become  in  a  legal  sense  peaceable,  that 
a  mere  scrambling  possession,  such  as  tying  horses  in  an  unfin- 
ished stable  in  the  hands  of  the  contractor,  is  not  sufficient.6 

§   108.    Pleadings. 

The  statute  in  Virginia  provides  that  when  the  action  is 
brought  in  court  it  shall  be  the  circuit  court  of  the  county, 
or  the  circuit  or  corporation  court  of  the  corporation  in  which 
the  land  or  some  part  thereof  is ;  and  that  it  shall  be  com- 
menced by  a  summons,  and  that  no  declaration  shall  be  required. 
This  is  the  only  formal  action  in  which  no  declaration  is  re- 
quired. The  summons  is  issued  by  the  clerk  upon  a  memo- 
randum furnished  by  the  plaintiff,  or  his  attorney,  describing 
the  premises  with  sufficient  accuracy  to  enable  the  sheriff  to 
place  the  plaintiff  in  possession  if  he  recovers.  The  summons 
should  show  on  its  face  that  the  possession  has  not  been 
withheld  over  three  years,  and  should  be  issued  and  returnable 
in  the  county  or  corporation  in  which  the  land  or  some  part 
thereof  is.  It  is  returnable  to  any  term  and  must  be  served 
at  least  five  days  before  the  return  day.  The  defendant's  only 
plea  is  not -guilty.  The  parties  may  have  a  jury  if  desired, 
and  the  case  takes  precedence  on  the  docket  over  all  other 
civil  cases.7  While  the  defendant's  only  plea  is  not  guilty, 
the  equitable  defences  allowed  in  an  action  of  ejectment  under 
§§  2741  and  2742  of  the  Code  are  equally  available  to  the 
defendant  provided  he  gives  the  ten  days'  notice  in  writing 
of  such  defences  as  required  by  §  2743  of  the  Code.8  Where 
a  defendant  appears,  but  fails  to  plead,  and  the  jury  are  sworn 

5.  Stephen   on   Pleading,   §   71. 

6.  Blake  v.  McCray,  65  Miss.  443,  cited  in  note  to  8  L.  R.  A.  537. 

7.  Code,    §§    2716,    2717.  • 

8.  Dobson   v.    Culpeper,    23    Gratt.    352,    355;    Locke   v.    Frasher,    79 
Va.  409. 


190  UNLAWFUL   ENTRY  OR  DETAINER  §§    109-111 

to  try  the  issues  joined,  and  the  defendant  has  been  permitted 
to  make  full  defences  as  though  the  issues  had  been  joined, 
he  cannot  afterwards,  in  the  appellate  court,  make  the  objec- 
tion for  the  first  time  that  no  issue  was  in  fact  joined.9 

§  109.    Contrasted  with  ejectment. 

Unlawful  entry  and  detainer  is  designed  to  protect  the 
actual  possession,  whether  rightful  or  wrongful,  against  un- 
lawful invasion,  whereas  ejectment  tries  the  title.  In  eject- 
ment, the  plaintiff,  as  a  rule,  recovers  on  the  strength  of  his 
own  title,  and  not  on  the  weakness  of  that  of  his  adversary, 
and  the  judgment  in  ejectment  is  final  and  conclusive  between 
the  parties,  whereas  in  unlawful  entry  and  detainer  it  is  ex- 
pressly provided  by  statute  that  judgment  shall  not  bar  any 
action  of  trespass  or  ejectment  between  such  parties,  nor  shall 
any  such  verdict  or  judgment  be  conclusive  in  any  future 
action  on  the  facts  therein  found.10 

§   110.    Statute  of  limitations. 

The  limitation  prescribed  by  the  statute  is  three  years  and 
the  burden  is  on  the  plaintiff  to  show  that  the  action  was 
brought  within  that  time.  As  this  is  an  action  given  by  statute, 
it  is  believed  that  the  limitation  is  of  the  right,  and  not  merely 
of  the  remedy.11 

§   111.   How  possession  of  premises  recovered,  from  ten- 
ant in  default  for  rent. 

Section  2719  of  the  Code  as  amended  in  1910  is  as  follows: 
"If  any  tenant  or  lessee  of  premises  in  a  city  or  town,  or  in 
any  subdivision  of  suburban  and  other  lands  divided  into  build- 
ing lots  for  residential  purposes,  or  of  premises  anywhere  used 
for  residential  purposes,  and  not  for  farming  or  agriculture,, 

9.  Hartley  v.   McKinney,   28   Gratt.   750;   cf.   Briggs  v.  Cook,   99   Va 
273,  38  S.  E.  148;  Colby  v.  Reams,  109  Va.  308,  63  S.   E.   1009. 

10.  Code,   §  2721;   Davis  v.   Mayo,   82   Va.   97. 

11.  Olinger  v.    Shepherd,   12   Gratt.   462;    Pettit  v.   Cowherd,   83   Va. 
20,   25,    1    S.     E.     392;     4     Min.     Inst.    558;    Graves'    Notes    on    PI.    31: 
Kincheloe    v.   Tracewells,    11    Gratt.    587;    for    historical    development 
of  the  action,  see  13  Am.  &  Eng.   Encl.  Law   (2nd  Ed.)   744. 


§'    113  RIGHT  OF  APPEAL  191 

being  in  default  in  the  payment  of  rent,  shall  so  continue  for 
five  days  after  notice,  in  writing,  requiring  possession  of  the 
premises,  or  the  payment  of  rent,  such  tenant  or  lessee  shall 
thereby  forfeit  his  right  to  the  possession.  In  such  case  the 
possession  of  the  defendant  may,  at  the  option  of  the  landlord 
or  lessor,  be  deemed  unlawful,  and  he  may  proceed  to  recover 
the  same  in  the  manner  provided  by  this  chapter." 

§   112.    When    proceeding  to    be    before    justice  of    the 
peace. 

If  the  proceeding  be  against  the  tenant  or  some  person 
claiming  under  him,  the  lease  of  the  tenant  being  originally  for 
a  period  not  exceeding  one  year,  or  for  the  time  such  tenant 
is  employed  by  the  landlord  as  a  laborer,  the  landlord  or  other 
person  entitled  to  the  possession  may  proceed  to  recover  the 
same  by  summons  obtained  from  a  justice  of  the  peace.12 

§   113.   Right  of  appeal. 

The  constitution  and  statute  giving  right  of  appeal  in  cases 
involving  the  title  or  boundaries  of  land,  regardless  of  value, 
include  cases  of  unlawful  detainer.  Possession  is  regarded  as 
a  necessary  element  of  complete  title.13 

12.  Code,    §   2716. 

13.  Pannill    v.    Coles,    81    Va.    380;    Rathbone    Co.   v.    Ranch,    5    W. 
Va.  79. 


CHAPTER  XIV. 
EJECTMENT. 

§  114.  Historical. 

§  115.  Ejectment  at  common  law. 

§  116.  Plaintiffs   in   ejectment   in   Virginia. 

§  117.  Plaintiff's  title. 

Adverse  possession. 
§  118.  What  may  be   recovered. 
§  119.  Defendants  in  ejectment. 
§  120.  Pleadings  in  ejectment. 

Improvements. 

§  121.  Evidence  in  ejectment. 
§  122.  Statute  of  limitations. 
§  123.  Interlocks. 
§  124.  Equity  jurisdiction. 
§  125.  Verdict. 
§  126.  Judgment. 

§   114.   Historical. 

The  action  of  ejectment  was  originally  a  mere  personal  action 
of  trespass  to  recover  damages  from  the  defendant  for  eject- 
ing the  plaintiff  from  his  close.  At  a  later  stage,  a  tenant 
was  allowed  to  recover  his  unexpired  term  of  years.  It  was 
afterwards  extended  to  the  recovery  of  freeholds,  and  finally 
became  the  established  method  of  trying  title  to  land.1 

§   115.  Ejectment  at  common  law. 

Professor  Graves  gives  the  following  account  of  the  proceeding 
in  an  action  of  ejectment  at  common  law  :2  "The  old  action 
was  commenced  in  the  name  of  a  fictitious  plaintiff,  say  John 
Doe,  and  was  brought  against  a  fictitious  defendant,  say  Rich- 
ard Roe.  The  owner  of  the  land  on  whose  behalf  the  action 
was  really  brought,  say  Wm.  Brown,  was  called  the  lessor  of 
the  plaintiff,  i.  e.,  of  John  Doe,  the  nominal  or  fictitious  plain- 
tiff, to  whom  Wm.  Brown  was  supposed  to  have  made  a  lease. 

1.  4  Min.   Inst.  438;   10  Am.   &   Eng.   End.   Law   (2nd   Ed.)   470. 

2.  Graves'   Notes   on   PI.   24-26. 


§115  EJECTMENT   AT   COMMON    LAW  193 

The  real  tenant  of  the  land,  say  John  Green,  was  not  made 
the  defendant  at  first,  but  Richard  Roe  in  his  stead,  called 
the  casual  ejector.  The  object  of  this  was  to  compel  John 
Green  to  beg  to  be  allowed  to  defend  his  land,  when  he  would 
be  granted  the  liberty  on  terms,  i.  e.,  on  condition  of  entering 
into  the  consent  rule,  confessing  lease,  entry,  and  ouster.  The 
style  of  the  action  was  at  first  John  Doe,  on  the  demise  of 
Wm.  Brown  v.  Richard  Roe,  i.  e.,  John  Doe,  the  tenant  of 
Wm.  Brown,  v.  Richard  Roe.  For  ejectment  could  only  be 
brought  by  a  tenant  for  a  term  of  years,  complaining  of  a 
forcible  ejection,  or  ouster,  from  the  land  demised;  and  hence 
\Ym.  Brown  could  not  sue  in  ejectment  directly  to  recover  his 
land,  but  was  forced  to  try  the  title  under  cover  of  a  lease 
pretended  to  have  been  made  by  him  to  John  Doe,  and  in 
an  action  apparently  brought  by  the  said  Doe  for  his  injury  in 
being  deprived  of  the  lease.  But  the  doctrine  of  maintenance 
forbade  Brown  to  make  Doe  a  lease,  while  he,  Brown,  was  out 
of  possession,  with  an  adverse  possession  against  him.  Hence 
Brown  must  either  actually  enter  on  his  land  before  making 
Doe  the  lease,  or  under  the  fictions  he  must  have  the  right  of 
entry,  or  ejectment  would  not  lie;  for  it  would  otherwise  be 
impossible  that  Brown  could  ever  have  given  Doe  the  lease, 
which  is  the  foundation  of  the  action  of  ejectment.  By  the 
old  law  the  oztmer  of  land  did  not  always  have  the  right  of 
entry,  and  hence  could  not  always  bring  ejectment,  but  was 
sometimes  forced  to  resort  to  a  writ  of  right,  or  some  other  ac- 
tion. 

"The  ordinary  way  in  which  the  right  of  entry  was  lost  at  com- 
mon law  was  by  the  death  of  the  tortfeasor  (disseisor),  and  the 
descent  of  his  tortious  fee  to  his  heir.  The  true  owner's  right 
of  entry  was  then  said  to  be  tolled  (i.  e.,  taken  away)  by 
descent  cast.3  But  now  in  Virginia,  'The  right  of  entry  or 
action  for  land  shall  not  be  tolled  or  defeated  by  descent  cast.'4 
The  English  statute  of  21  James  I,  ch.  xvi,  §  1,  added  another 
way  of  tolling  an  entry,  namely,  by  the  lapse  of  twenty  years 
after  the  right  accrued ;  and  in  this  indirect  mode  the  time 
of  bringing  ejectment  was  limited  by  that  statute.  And  the  Code 

3.  3   Bl.  Com.    (176). 

4.  Code,  §  2715. 

—13 


194  EJECTMENT  §    116 

of  Virginia,  §  2915,  declares  that  'no  person  shall  make  an  entry 
on,  or  bring  an  action  to  recover,  any  land  lying  east  of  the  Alle- 
ghany  mountains  but  within  fifteen  years,  or  any  land  lying  west 
of  the  Alleghany  mountains  but  within  ten  years,  next  after  the 
time  when 'the  right  to  make  such  entry,  or  bring  such  action, 
shall  have  first  accrued  to  himself,  or  to  some  person  through 
whom  he  claims.' 

"Under  this  statute  right  of  entry  and  of  action  is  barred 
after  fifteen  or  ten  years  (as  the  case  may  be)  of  adverse 
possession;  but  before  the  action  is  thus  barred  by  the  statute 
of  limitations,  the  right  to  bring  ejectment  now  in  Virginia 
does  not  depend  upon  the  right  of  entry.  For  ejectment  is  made 
to  take  the  place  of  the  old  writ  of  right  (now  abolished),  and 
that  did  not  require  right  of  entry.5  The  student  must  not 
confound,  under  the  old  action,  the  right  of  entry  of  Brown, 
the  lessor  of  the  plaintiff,  with  the  entry  of  Doe  under  Brown's 
lease  which  was  confessed  under  the  consent  rule,  admitting 
lease,  entry,  and  ouster.  For,  under  the  old  practice,  Brown's 
right  of  entry,  without  which  he  could  not  legally  give  Doe  a 
lease,  was  essential  to  the  right  to  bring  ejectment,  and  of 
course  Green  was  not  compelled  to  admit  it.  But  once  granted 
that  Brown  had  the  right  of  entry,  then  Green  was  compelled 
to  admit  that  he  did  enter  and  give  Doe  a  valid  lease;  that 
Doe  made  entry  under  this  lease ;  and  that  Doe  was  ousted 
or  evicted  at  the  hands  of  Green,  who,  on  these  admissions  is 
allowed  to  take  the  place  of  Richard  Roe,  and  become  de- 
fendant in  the  action."6 

§   116.   Plaintiffs  in  ejectment  in  Virginia.7 

All  fictions  have  been  abolished  in  Virginia,  and  the  action 
is  brought  by  the  real  claimant  of  the  land  against  the  person 
actually  occupying  the  same  adversely  to  the  plaintiff,  or  if  there 
be  none  such,  against  some  person  exercising  ownership  thereon 
or  claiming  title  thereto,  or  some  interest  therein  at  the  commence- 

5.  2    Min.    Inst.    513,    514;    2    Barton's    Law    Pr.    1101;    Reynolds   v. 
Cook,  83  Va.  817,  3  S.   E.  710. 

6.  Langdell,   Eq.   PI.,   §  123. 

7.  All    of   the    subsequent    sections    of   this    chapter    deal    with    the 
statutory  action  of  ejectment  in  Virginia. 


§  117  PLAINTIFF'S  TITLE  195 

ment  of  the  action.  It  may  be  brought  in  the  same  cases  in 
which  a  writ  of  right  might  have  been  brought  prior  to  July  1, 
1850,  and  by  any  person  claiming  real  estate  in  fee,  or  for  life,  or 
for  years,  either  as  heir,  devisee,  or  purchaser,  or  otherwise. 
No  person,  however,  can  bring  the  action  unless  he  has,  at 
the  time  of  commencing  it,  a  subsisting  interest  in  the  premises 
claimed  and  a  right  to  recover  the  same,  or  to  recover  the 
possession  thereof,  or  some  share,  interest,  or  portion  thereof. 
It  may  also  be  brought  by  one  or  more  tenants  in  common, 
joint  tenants  or  coparceners  against  their  co-tenants,  but  the 
plaintiff  in  such  case  is  bound  to  prove  an  actual  ouster  or 
some  other  act  amounting  to  a  total  denial  of  the  plaintiff's 
right  as  co-tenant.  One  joint  tenant  or  tenant  in  common 
cannot  bring  the '  action  in  his  own  name  for  the  benefit  of 
himself  and  others.  He  can  recover  his  own  share,  but  not  that 
of  any  one  else.8  Where  land  has  been  conveyed  in  trust  to  a 
trustee  to  hold  for  the  benefit  of  a  third  person,  the  beneficiary, 
after  the  purposes  of  the  trust  have  been  satisfied,  may  main- 
tain an  action  of  ejectment  in  his  own  name,  although  the  legal 
estate  is  still  in  trust,9  or  the  action  may  be  maintained  by  the 
trustee  in  his  own  name  whether  the  trust  has  been  satisfied 
or  not  against  a  third  person  holding  adversely.10 

§117.  Plaintiff's  title. 

Generally,  a  plaintiff  in  ejectment  must  recover  solely  on  the 
strength  of  his  own  title,  and  not  on  the  weakness  of  that  of 
his  adversary,  and  this  title  of  the  plaintiff  must  be  a  legal 
title.  There  is  no  comparison  of  titles,  and  the  verdict  is  not 
rendered  in  favor  of  the  person  having  the  better  title,  but  the 
plaintiff  must  show  good  title  in  himself,  and  if  he  fails  to  do 
so,  the  defendant  wins,  i.  e.,  the  party  in  possession  is  left 
undisturbed.  It  results,  therefore,  if  the  defendant,  occupying 
under  a  claim  or  color  of  title,  can  show  an  outstanding  title 
in  a  third  person  he  defeats  the  plaintiff  as  effectually  as  if 
the  defendant  had  that  title.  The  outstanding  legal  title,  how- 

8.  Code,  §§  2723,  2725,  2726,  2736;  Marshall  v.  Palmer,  91  Va.  344, 
21   S.  E.  672. 

9.  Hopkins  v.  Ward,  6  Munf.  38. 

10.  Hopkins   v.   Stephens,   2   Rand.   422. 


196  EJECTMENT  §    117 

ever,  which  will  defeat  the  action  must  be  a  present,  subsisting 
and  operative  legal  title  upon  which  the  owner  could  recover 
if  asserting  it  by  action.11  The  plaintiff  must  have  a  subsisting 
interest  and  right  to  recover  the  same  at  the  time  of  action 
brought.  There  can  be  no  recovery  except  in  special  instances 
unless  the  evidence  shows  that  at  the  time  the  action  was 
brought  the  plaintiff  was  the  owner  of  the  legal  title.12 

If  there  be  an  outstanding  unsatisfied  mortgage  or  deed  of 
trust  on  land  merely  to  secure  a  debt,  in  many  jurisdictions  this 
is  regarded  as  a  mere  lien,  and  the  mortgagor  or  grantor  may 
still  maintain  ejectment  in  his  own  name  and  the  defendant  will 
not  be  permitted  to  set  up  the  outstanding  mortgage  or  deed  of 
trust  to  defeat  the  action.13  It  has  been  held  in  Virginia  that,  if 
the  deed  of  trust  has  been  satisfied  although  not  released, 
the  grantor  in  such  deed  may  maintain  ejectment  in  his  own 
name.14  The  plaintiff,  however,  must  have  the  legal  title  at  the 
time  the  action  is  commenced.  It  cannot  be  acquired  afterwards. 
An  outstanding  legal  title  in  another  than  the  plaintiff  at  the 
time  of  the  institution  of  the  action  breaks  in  upon  and  disrupts 
the  plaintiff's  title  and  bars  his  recovery,  and  the  plaintiff  cannot 
make  good  the  defect  by  the  subsequent  purchase  of  such  out- 
standing title.15  It  is  immaterial  whether  this  outstanding  legal 
title  is  in  the  commonwealth  or  another.  The  title  to  be  shown 
by  the  plaintiff  in  order  to  entitle  him  to  recover  is  either  a  grant 
from  the  commonwealth  connecting  himself  therewith  by  a  reg- 
ular chain  of  title,  or  such  a  statement  of  facts  as  will  warrant 
the  jury  in  presuming  a  grant,  or  adverse  possession  for  the 
statutory  period  under  a  claim  or  color  of  title.16  If,  however, 

11.  Reusens   v.    Lawson,    91   Va.   226,   21    S.    E.    347;    King  v.    Mul- 
lins,  171  U.  S.  404. 

12.  Leftwich  v.  City  of  Richmond,  100  Va.   164,  40  S.   E.  651. 

13.  10    Am.    &    Eng.    Encl.    Law    (2nd    Ed.),    504,    and    cases    cited; 
Barrett  v.  Hinckley,  124  111.  32,  7  Am.  St.  Rep.  331;  15  Cyc.  70,  71. 

14.  Lynchburg  Cotton  Mills  v.  Rives,  112  Va.  — ,  70  S.  E.  542. 

15.  Merryman  v.  Hoover,  107  Va.  485,  59  S.   E.  483. 

16.  Sulphur  Mines  Co.  v.  Thompson,  93  Va.  293,  25  S.   E.  832;  Va. 
Midland  R.  Co.  v.  Barbour,  97  Va.  118,  33  S.  E.  554,  5  Va.  Law  Reg. 
166,  and  note;  88  Am.  St.  Rep.  701. 


§  117  PLAINTIFF'S  TITLE  197 

the  plaintiff  and  defendant  claim  title  from  a  common  source, 
the  plaintiff  need  not  trace  his  title  back  of  the  common  source.17 

Adverse  Possession. — The  subject  of  adverse  possession  can- 
not be  gone  into  fully  in  a  course  of  pleading.  It  is  fully  dis- 
cussed elsewhere.18  The  article  in  1  Am.  &  Eng.  Encl.  Law 
is  commended  as  a  very  satisfactory  discussion  of  the  subject. 
The  essentials  of  adverse  possession  to  confer  title  are :  the  pos- 
session must  be  hostile  and  under  claim  of  right,  must  be  actual, 
open  and  notorious,  exclusive  and  continuous.  Adverse  posses- 
sion to  constitute  title  must  at  all  times  be  such  an  invasion  of 
the  rights  of  the  owner  as  will  give  him  a  cause  of  action.19  It 
would  seem,  therefore,  that  where  the  surface  and  mineral  rights 
have  been  severed,  the  adverse  possession  of  the  surface  for  no 
length  of  time  would  bar  the  rights  of  the  owners  of  minerals 
in  unopened  mines.  At  no  time  has  the  owner  of  the  minerals 
had  a  cause  of  action  against  the  owner  of  the  surface.  "The 
title  to  the  freehold  of  the  one  subject  cannot  be  acquired  by  the 
adverse  possession  of  the  other.  The  presumption,  however,  is 
that  the  owner  of  the  surface  owns  all  beneath  it,  and  the  burden 
is  on  the  person  claiming  that  there  has  been  a  severance  of  title 
and  interest  to  prove  it  either  by  deed  of  record,  or  by  the  proof 
of  such  facts  and  circumstances,  brought  home  to  the  party  sought 
to  be  charged,  as  will  affect  his  conscience  with  notice  of  adverse 
rights,  or  will  serve  to  put  him  on  enquiry  which  would  lead  to 
such  knowledge."20 

A  vendee  who  has  not  paid  the  purchase  money  nor  recorded 
his  deed,  holds  under  and  not  against  the  vendor.  Coparceners, 
tenants  in  common  and  joint  tenants  are  presumed  to  hold  for 
and  not  against  each  other,  but  this  presumption  may  be  over- 
come by  notorious  acts  of  ouster,  or  adverse  possession  brought 

17.  Carter  v.  Wood,  103  Va.  68,  48  S.  E.  553;  Marbach  v.  Holmes, 
105   Va.   178,   52   S.   E.  828;    Hurley  v.  Charles,   110  Va.  27,   65    S.    E 
468. 

18.  1   Am.   &   Eng.    Encl.   Law    (2nd   Ed.)    787. 

19.  Va.  Coal  &  Iron  Co.  r.  Kelly,.  93  Va.  332,  24  S.  E.  1020. 

20.  Interstate  Co.  r.  Clintwood,  105  Va.  575,  54  S.  E.  593;  cf.  Har- 
man  v.  Ratcliff,  93  Va.  249,  24  S.  E.  1023;  Sharp  v.  Shenandoah  Fur- 
nace Co.,  100  Va.  27,  40  S.  E.  103;  Steinman  v.  Vicars,  99  Va.  555,  39 
S.  E.  227. 


198  EJECTMENT  §    117 

home  to  the  others.21  While,  as  a  rule,  a  tenant  cannot  dispute 
the  title  of  his  landlord,  still  the  tenant  may  become  an  adverse 
claimant  by  a  clear,  positive,  continued  disclaimer  and  disavowal 
of  the  landlord's  title  brought  home  to  the  landlord,  and  the  ten- 
ant need  not  first  surrender  possession  to  the  landlord.22  The 
title  acquired  by  adverse  possession  is  superior  to  any  paper 
title,  no  matter  how  complete  the  latter  may  be.  Such  adverse 
possession  does  not  merely  bar  the  remedy  of  the  party  holding 
the  paper  title,  but  takes  away  from  him  his  title  and  his 
right  of  entry  and  vests  it  in  the  adverse  claimant,  thereby  giving 
him  a  superior  title  upon  which  he  may  himself  maintain  eject- 
ment.23 

The  rule  that  the  plaintiff  must  recover  on  the  strength  of  his 
own  legal  title  is  subject  to  two  important  exceptions:  (1)  Where 
a  mere  stranger,  without  title  or  authority,  intrudes  upon  a  per- 
son in  peaceable  possession  of  land.  Here  the  prior  possessor  is 
allowed  to  recover  on  the  strength  of  his  previous  possession, 
because  actual  possession  is  evidence  of  title  against  all  the  world 
except  the  true  owner,  and  this  possession  cannot  be  disturbed 
nor  the  possessor  put  to  the  proof  of  his  title  by  a  mere  stranger. 
e.  g.,  a  squatter.  It  is  said  that  "the  relation  of  the  parties  stands 
in  the  place  of  title ;  and  though  the  title  of  the  plaintiff  is  tainted 
with  vices  or  defects  that  would  prove  fatal  to  his  recovery  with 
any  other  defendant  in  peaceable  possession,  it  is  yet  altogether 
sufficient  in  litigation  with  one  who  entered  into  possession  under 
it  or  otherwise  stands  so  related  to  it  that  the  law  will  not  al- 
low him  to  plead  its  defects  in  his  defence."24  (2)  A  tenant  put 
into  possession  by  his  landlord  is  estopped  to  deny  the  title  of 
his  landlord  as  well  in  ejectment  as  elsewhere.25 

If  a  party  claiming  to  be  the  purchaser  of  a  tract  of  land  for 
valuable  consideration,  and  without  notice  of  a  prior  unrecorded 

21.  Pillow  v.  S.  W.  Imp.  Co.,  92  Va.  144,  23  S.   E.  32. 

22.  Neff  v.  Ryman,  100  Va.  521,  42  S.   E.  314. 

23.  Leffingwell  v.  Warren,  2  Black  (U.  S.)   599;  Sharon  v.  Tucker, 
144  U.  S.  533,  544.     See  also  Hollingsworth  v.  Sherman,  81  Va.  668, 
671;  Va.  Mid.  R.  Co.  v.  Barbour,  5  Va.  Law  Reg.  166,  and  note. 

24.  Tapscott  v.  Cobbs,  11  Gratt.  172,  174;  Bradshaw  ^.  Ashley,  180 
U.  S.  59;  Rhule  v.  R.  Co.,  102  Va.  343,  46  S.  E.  331. 

25.  Emerick  v.   Tavener,   9   Gratt.   220;   Witten  v.   St.   Clair,   17   W. 
Va.  762. 


§119  DEFENDANTS    IN    EJECTMENT  199 

deed,  can  maintain  ejectment  against  the  grantee  in  such  unre- 
corded deed,  he  must  show  that  he  received  his  conveyance  and 
actually  paid  the  purchase  money  before  he  had  notice  of  the 
prior  unrecorded  deed.  The  recital  in  the  deed  of  the  payment 
of  the  purchase  money  is  evidence  against  his  grantor,  but  as 
against  the  grantee  in  the  prior  deed  it  is  mere  hearsay.26 

§   118.   What  may  be  recovered. 

As  a  general  rule,  the  action  will  not  lie  except  for  that  upon 
which  entry  may  be  made,  or  of  which  the  sheriff  can  deliver 
possession.  Usually,  it  cannot  be  maintained  for  a  mere  ease- 
ment or  license.  It  is  allowed,  however,  by  municipal  corpora- 
tions to  recover  possession  of  streets  wrongfully  occupied  by 
individuals,  and  a  railroad  company  may  maintain  the  action  to 
recover  its  roadbed  or  right  of  way.27  In  Virginia  it  has  been 
held  that  the  right  to  quarry  and  remove  stone  is  not  a  mere  li- 
cense, but  an  interest  in  or  a  right  arising  out  of  land,  and  hence 
may  be  recovered  under  the  Virginia  statute,  declaring  that  the 
party  having  an  interest  in  or  claim  to  the  land  held  adversely 
by  another  may  sell  and  convey  the  same  and  his  grantee  may 
maintain  ejectment  for  it.28  Under  the  statute  in  Virginia,  if 
the  plaintiff  recovers,  he  may  recover  not  only  possession  of  the 
land,  but  rents  and  profits  for  a  period  generally  not  longer  than 
five  years  before  the  action  was  begun,  and  coming  down  to  ver- 
dict, and  also  for  any  destruction  or  waste  of  the  buildings  or 
other  property  with  which  the  defendant  is  chargeable.29 

§   119.   Defendants  in  ejectment. 

It  is  declared  by  statute  in  Virginia  that  the  person  actually  oc- 
cupying the  premises  and  any  person  claiming  title  thereto,  or 
any  interest  therein  adversely  to  the  plaintiff  may  be  named  de- 
fendants in  the  declaration,  and  if  there  be  no  person  actually 
occupying  the  premises  adversely  to  the  plaintiff,  then  the  ac- 
tion must  be  against  some  person  exercising  ownership  thereon 

26.  Bugg  v.  Seay,  107  Va.  648,  60  S.  E.  89. 

27.  11  Am.  &  Eng.  Encl.  Law   (2nd  Ed.)  472. 

28.  Reynolds  v.  Cook,  83  Va.  817,  3  S.  E.  710. 

29.  Code,  §  2751. 


200  EJECTMENT  §    120 

or  claiming  title  thereto  or  some  interest  therein  at  the  com- 
mencement of  the  suit,  and  if  a  lessee  be  made  defendant  at  the 
suit  of  a  party  claiming  against  the  title  of  his  landlord,  such 
landlord  may  appear  and  be  made  a  defendant  with  or  in  place 
of  his  lessee.29a  In  order  to  maintain  ejectment,  the  plaintiff 
must  be  out  of  possession,  though  the  defendant  may  be  either 
in  or  out.  "The  object  of  the  action  is  to  try  possessory  title  to 
corporeal  hereditaments  and  to  recover  possession  thereof,"  and 
the  effect  of  the  amendment  of  the  statute  made  in  1895  and 
1896  was  simply  to  permit  the  plaintiff,  in  cases  where  the  prem- 
ises were  occupied,  in  his  discretion  to  join  as  defendants  with 
the  occupant  any  person  claiming  title  thereto  or  interest  therein 
adversely  to  the  plaintiff.30  Prior  to  the  amendment  referred  to, 
if  the  land  was  actually  occupied,  the  action  was  against  the  oc- 
cupant only,  and  only  in  cases  where  the  premises  were  vacant 
could  the  action  be  maintained  against  one  merely  claiming  title 
thereto.  The  effect  of  the  amendment  is  to  permit  the  plaintiff, 
where  the  premises  are  occupied,  to  join  as  defendants  with  the 
occupant  any  person  claiming  title  thereto  or  an  interest  therein 
adversely  to  the  plaintiff,  thus  enabling  him  in  a  single  action  to 
establish  his  title  against  all.31  But  both  before  and  since  the 
amendment  the  action  could  be  maintained  against  one  merely 
claiming  adversely  to  the  plaintiff  if  the  premises  were  vacant. 
If  the  plaintiff  is  in  possession,  his  remedy,  if  any,  is  by  a  bill  in 
equity.  If  the  plaintiff  is  in  possession  of  the  surface  of  land, 
and  the  underlying  minerals  are  claimed  by  another  under  a  deed 
subordinate  to  that  of  the  plaintiff,  the  plaintiff  cannot  maintain 
ejectment,  but  must  proceed  in  ecmitv  bv  a  bill  to  remove  the 
cloud  on  his  title.32 

§  120.   Pleadings  in  ejectment. 

The  action  is  a  mixed  action  to  recover  land  and  damages  and 
is  required  to  be  brought  in  the  circuit  court  of  the  county  or  cir- 
cuit or  corporation  court  of  the  corporation  in  which  the  land 

29a.  Code,  §  2726.     . 

30.  Steinman  v.  Vicars,  99  Va.  595,  39  S.   E.  227. 

31.  Steinman  v.  Vicars,  supra, 

32.  Steinman  v.   Vicars,  supra. 


§120  PLEADINGS    IN    EJECTMENT  201 

or  some  part  thereof  is.33  The  action  is  commenced  by  service 
on  the  defendant  of  a  declaration  to  which  is  appended  a  notice 
that  at  a  certain  time  during  the  term  of  court  to  be  held,  or  on 
a  certain  rule  day,  the  declaration  will  be  filed  in  court,  or  in 
the  clerk's  office,  against  the  defendant.  The  form  of  the  decla- 
ration and  notice  is  as  follows : 

John  Smith,  plaintiff,  complains  of  Henry  Jones,  defendant, 
of  a  plea  of  trespass,  for  this,  to-wit,  that  heretofore,  to-wit,  on 

the    ....    day  of    ,   19    ....    (any  day  after  plaintiff's 

title  accrues),  the  said  plaintiff  was  possessed  in  fee  simple  (or 
whatever  his  title  is)  of  a  certain  tract  or  parcel  of  land  lying 
and  being  in  the  County  of  Rockbridge,  near  the  Natural  Bridge, 
adjoining  the  lands  of  James  Jones  and  others,  containing  500 
acres  and  bounded  as  follows:  (insert  description)  and  the 
plaintiff  says  that  he,  being  so  possessed  of  the  said  tract  or  par- 
cel of  land,  the  said  defendant  afterwards,  to-wit,  on  the.... 
day  of ,  19  .  .  .  .,  entered  into  the  same,  and  that  he  un- 
lawfully withholds  from  the  said  plaintiff  the  possession  thereof, 

to  the  damage  of  said  plaintiff dollars  and  therefore 

he  brings  his  suite. 

,  P-  q- 

To  Henry  Jones : 

You  are  hereby  notified  that  the  foregoing  declaration  in  eject- 
ment against  you  will  be  filed  in  the  clerk's  office  of  the  Circuit 
Court  of  Rockbridge  County  at  rules  to  be  holden  for  said  court 
on  the  first  Monday  of  October,  1903,  and  that  rents  and  profits 
and  damages  will  also  be  claimed  of  you  as  per  account  thereof 
annexed  to  this  declaration. 

,  P-  q-34 

If  the  plaintiff  desires  to  recover  rents  and  profits  of  the  land 
and  damages  for  waste  and  injury  to  it,  a  statement  of  the  rents 
and  profits  and  damages  should  be  filed  along  with  the  declara- 
tion, and  a  copy  thereof  served  upon  the  defendant  at  the  same 
time  he  is  served  with  a  copy  of  the  declaration.  The  declara- 
tion must  contain  such  a  description  of  the  premises  claimed  as 

33.  Code,   §  2724. 

34.  See  4  Min.   Inst.  1705,  from  which  this  form  is  taken. 


202  EJECTMENT  §    120 

will  enable  the  sheriff,  with  the  aid  of  information  from  the 
plaintiff  or  other  person,  to  put  the  defendant  into  possession. 
It  must  also  state  the  nature  of  the  estate  claimed  by  the  plain- 
tiff "whether  he  claims  in  fee,  or  for  his  life,  or  the  life  of  an- 
other, or  for  years,  specifying  such  lives  or  the  duration  of  such 
time,  and  when  he  claims  an  undivided  share  or  interest  he  shall 
state  the  same."35  A  declaration  may  contain  several  counts  and 
several  parties  may  be  named  as  plaintiffs  jointly  in  one  count, 
.and  separately  in  another.36  The  defendant  may  demur  to  the 
declaration  or  plead  in  abatement  or  in  bar,  but  the  only  plea  in 
bar  which  he  is  allowed  to  file  is  that  of  the  general  issue,  not 
guilty,  and  under  this  he  is  allowed  to  show  all  of  his  defences. 
The  defendant  was  not  allowed  at  common  law  to  set  up  any 
equitable  defence  against  the  plaintiff's  legal  title,  but  this  has 
been  changed  by  statute  in  Virginia  so  that  in  two  cases  the  de- 
fendant is  allowed  to  set  up  an  equitable  defence.  (1)  Where 
land  has  been  sold  and  there  is  a  writing,  stating  the  purchase 
and  the  terms  thereof,  signed  by  the  vendor  or  his  agent,  and 
there  has  been  such  payment  or  ^fff  performance  as  would  in 
equity  entitle  the  vendee  or  those  claiming  under  him  to  convey- 
ance of  the  legal  title  from  the  vendor  without  condition,  there 
can  be  no  recovery  by  the  grantor,  or  those  claiming  under  him. 
(2)  The  payment  of  the  whole  sum,  or  the  performance  of  the 
whole  duty,  or  the  accomplishment  of  the  whole  purpose,  which 
any  mortgage  or  deed  of  trust  may  have  been  made  to  secure  or 
effect,  shall  prevent  the  grantee  in  such  deed  or  his  heirs  from  re- 
covering the  property  conveyed,  wherever  the  defendant  would 
in  equity  be  entitled  to  a  decree  revesting  the  legal  title  in  him 
without  condition.  In  each  of  these  cases,  however,  the  defend- 
ant is  not  allowed  the  benefit  of  these  defences,  unless  notice 
in  writing  of  such  defence  is  given  ten  days  before  the  trial,  but 
it  is  further  provided  that  whether  he  shall  or  shall  not  make 
or  attempt  such  defences  he  shall  not  be  precluded  from  resort- 
ing to  equity  for  any  relief  to  which  he  would  have  been  entitled 
if  the  above  provisions  had  not  been  enacted.37  With  these 
two  exceptions,  the  defendant  in  ejectment  cannot  avail 

35.  Code,  §  2730. 

36.  Code,   §  2731. 

37.  Code,  §§  2741,  2742,  2743. 


§  120  PLEADINGS  IN  EJECTMENT  203 

himself  of  any  equitable  defences.  It  is  to  be  further 
noted  that  when  a  defendant  seeks  to  avail  himself  of  either 
of  these  statutory  exceptions,  he  must  bring  himself  strictly 
within  their  provisions,  e.  g.,  a  vendee  of  land  may  be  in  pos- 
session and  have  paid  all  of  the  purchase  money,  and  be  entitled 
to  call  for  a  deed  without  condition,  but  he  cannot  avail  himself 
of  the  statutory  defence  unless  his  contract  is  in  writing,  signed, 
etc.38  No  mere  parol  disclaimer  can  operate  to  vest  title.  A 
disclaimer  to  a  freehold  estate  can  only  be  made  in  this  State  by 
a  deed,  or  in  a  court  of  record.  In  case  of  disputed  boundaries, 
the  parties  may  agree  upon  a  line  by  way  of  compromise,  and 
if  they  take  and  hold  possession  up  to  that  line  for  the  requisite 
statutory  period,  the  mere  possession  will  in  time  ripen  into  title, 
but  no  mere  parol  agreement  to  establish  a  boundary  and  thus 
exclude  from  the  operation  of  the  deed  land  embraced  therein, 
can  divest,  change,  or  affect  the  legal  rights  of  the  parties  grow- 
ing out  of  the  deed  itself.39  Neither  plaintiff  nor  defendant  can 
rely  upon  an  equitable  estoppel  and  although  two  adjacent  lot- 
owners  agree,  by  a  parol,  upon  a  boundary  line  between  them 
different  from  that  called  for  by  their  deeds,  and  erect  a  fence 
on  the  new  line,  the  purchaser  of  one  of  the  lots  whose  deed  calls 
for  the  original  line,  is  not  bound  by  the  agreement,  although 
he  knew  of  it  before  his  purchase  and  saw  the  fence  on  the  new 
line.40 

The  office  judgment  entered  against  the  defendant  in  an  ac- 
tion of  ejectment,  when  one  is  entered,  does  not  become  final 
without  the  intervention  of  the  court  or  jury.  A  defendant  may 
always  appear  at  the  next  term  and  ask  to  set  aside  the  office 
judgment  and  be  allowed  to  plead.  The  judgment  entered  in  the 
clerk's  office  is  not  final  and  does  not  become  so  until  judgment 
is  entered  up  in  court.41  A  verdict  in  ejectment  may  be  set  aside 
where  contrary  to  the  evidence  as  in  other  cases,  or  if  the  amount 
of  the  recovery  is  plainly  excessive,  and  the  record  points  out 

38.  Jennings  v.  Gravely,  92  Va.  377,  23  S.  E.  763. 

39.  McMurray  v.  Dixon,  105  Va.  605,  54  S.   E.  481. 

40.  Sutherland  v.    Emswiller,   111    Va.   507,   69   S.   E.   363;   Va.    Iron 
Co.  v.  Cranes  Nest  Co.,  102  Va.  405,  46  S.  E.  393. 

41.  Smithson    v.    Briggs,    33    Gratt.    180;    James    River,    etc.,    Co.    v. 
Lee,  16  Gratt.  424. 


204  EJECTMENT  §    121 

clearly  what  the  excess  is,  the  plaintiff  may  be  put  upon  terms  to 
release  the  excess  or  submit  to  a  new  trial.  This  may  be  done 
either  in  the  trial  court,  or  the  court  of  appeals.42 

Improvements. — Provision  is  made  for  the  defendant  to  re- 
cover the  value  of  any  permanent  improvements  he  may  have  put 
on  the  land  when  he  had  reason  to  believe  his  title  was  good,  and 
it  is  provided  that  if  the  defendant  intends  to  claim  for  improve- 
ments made  by  himself  or  those  under  whom  he  claims,  he  shall 
file  with  his  plea,  or  at  a  subsequent  time  before  trial  (if  for 
good  cause  allowed  by  the  court),  a  statement  of  his 
claim  therefor  in  case  judgment  be  rendered  for  the 
plaintiff,  and  in  such  case  the  damages  of  the  plain- 
tiff and  the  allowance  to  the  defendant  for  improvements 
shall  be  estimated  and  the  balance  ascertained,  and  judgment 
therefor  rendered.43  It  is  provided  that  the  plaintiff  may  re- 
cover for  rents  and  profits  not  exceeding  five  years  before  the 
commencement  of  the  action  and  down  to  the  verdict,  and  for 
damages  for  waste  or  othej  injury  done  by  the  defendant  during 
the  same  period,  but  if  the  defendant  claims  for  improvements 
and  such  claim  should  exceed  the  rents  and  damages  for  the  pe- 
riod above  stated,  then  the  plaintiff  may  claim  rents  and  profits 
and  damages  for  as  many  years  as  is  necessary  to  consume  the 
improvements,  if  the  defendant  has  had  possession  long  enough 
for  that  purpose,  but  he  cannot  recover  for  excess  of  rents  and 
damages  beyond  the  five  years.44 

§   121.   Evidence  in  ejectment. 

It  had  been  held  in  an  early  case  in  Virginia45  where  the  ex- 
terior boundaries  of  a  plaintiff  in  ejectment  included  lands  which 
were  excepted  from  the  operation  of  the  grant  that  the  plaintiff 
was  entitled  to  recover  all  the  land  within  the  metes  and  bounds 
of  his  grant  except  such  as  the  defendants  may  show  themselves 
entitled  to  under  the  reservation.  A  different  view  was  taken 

42.  Fry  v.  Stowers,  98  Va.  417,  36  S.  E.  482,  disapproving  Shiflett 
v.  Dowell,   90  Va.   745,  19  S.   E.  848. 

43.  Code,  §§  2753,  2754. 

44.  Code,   §§   2762,  2764. 

45.  Hopkins  v.  Ward,  6  Munf.  38. 


§    121  EVIDENCE  IN   EJECTMENT  205 

in  a  comparatively  recent  case  where  it  was  held  that  it  was  in- 
cumbent on  the  plaintiff  to  show  that  the  lands  in  controversy 
are  not  within  the  excepted  bounds.46  Subsequently  the  legis- 
lature declared  that  where  the  reserved  lands  were  not  described 
with  such  certainty  as  would  enable  the  same  to  be  readily  and 
accurately  located  by  a  competent  surveyor,  the  plaintiff  should 
be  entitled  to  recover  so  much  of  said  land  within  his  said  ex- 
terior lines  as  does  not  appear  by  preponderance  of  the  evidence 
to  be  within  the  limits  of  any  such  reservation,  and  as  he  would 
otherwise  be  entitled  to  recover  if  such  grant  or  other  convey- 
ance had  contained  no  such  reservation,  provided  that  the  act 
should  not  apply  when  it  appeared  from  the  evidence  that  the 
defendant  was  in  possession  of  such  reserved  land  under  claim 
of  title  thereto.47 

Boundaries. — In  locating  boundaries,  regard  is  to  be  had  first 
to  natural  landmarks,  then  to  adjacent  boundaries,  and  last  to 
courses  and  distances.  That  which  is  in  its  nature  more  per- 
manent is  always  to  be  preferred.48  Upon  the  question  of  loca- 
tion of  boundaries  and  corners,  the  Virginia  doctrine  is  that  the 
declarations  of  deceased  persons  as  to  such  boundaries  or  cor- 
ners may  be  given  in  evidence,  provided  such  persons  had  pe- 
culiar means  of  knowing  the  facts  in  question,  and  the  declara- 
tions are  not  liable  to  the  suspicion  of  bias  from  interest.49 
Parol  evidence  may  also  be  received  to  prove  by  general  reputa- 
tion and  tradition  the  location  of  a  corner  of  a  patent  more  than 
one  hundred  years  old.50  Where  the  question  is  one  of  title  by 
adverse  possession,  it  may  be  shown  by  parol  that  the  character 
of  the  possession  was  such  that  the  possessor  was  generally  re- 
puted in  the  neighborhood  to  be  the  owner.51 

46.  Reusens  v.  Lawson,  91  Va.  226,  21  S.   E.  347. 

47.  Code,  §  2734a. 

48.  Reusens  v.  Lawson,  91  Va.  226,  21  S.  E.  347;  Matheny  v.  Allen, 
63  W.  Va.  443,  60  S.   E.  407;   Monographic   Note,   129   Am.   St.    Rep. 
990. 

49.  Fry  v.   Stowers,  92  Va.   13,  22   S.   E.  500. 

50.  Douglas  Land  Co.  r.  Thayer,  107  Va.  292,  58  S.  E.  1101.     This 
case  is  very  full  and  important  on  various  other  points. 

51.  Lusk  v.  Pelter,  101  Va.  790,  45  S.  E.  333. 


206-  EJECTMENT  §§  122-124 

§   122.    Statute  of  limitations. 

We  have  already  seen  that  title  may  be  acquired  to  real  estate 
by  adverse  possession  for  the  period  fixed  by  statute,  but  a  saving- 
is  made  in  favor  of  infants  and  insane  persons  who  were  such 
at  the  time  the  right  of  action  accrued,  and  formerly  a  similar 
saving  was  made  as  to  married  women;  but  the  infancy  of  one 
joint  tenant  or  tenant  in  common  will  not  prevent  the  statute 
from  running  against  others  not  laboring  under  any  disability, 
as  they  could  at  all  times  have  brought  an  action  to  recover  their 
shares  or  interest.52  Furthermore,  an  action  of  ejectment  in 
the  name  of  the  husband  and  wife  to  recover  the  common  law 
lands  of  the  wife  musty  if  the  husband  be  living  at  the  time  of 
trial,  be  brought  within  the  statutory  period  without  deduction  on 
account  of  the  coverture  of  the  wife ;  but  if  the  husband  be  dead 
and  the  action  survives  to  the  wife,  the  period  of  her  coverture 
is  deducted  provided  the  whole  time  elapsing  from  the  time  the 
right  of  action  accrued  until  action  brought  does  not  exceed 
twenty  years.53  The  statute  of  limitations  is  a  muniment  of 
title  in  ejectment,  and  may  be  shown  under  the  general  issue  of 
"not  guilty." 

§   123.   Interlocks. 

In  the  case  of  interlocks  where  the  senior  patentee  has  en- 
tered upon  any  part  of  his  lands,  claiming  the  whole,  the  Vir- 
ginia doctrine  is  that  his  claim  is  extended  to  the  whole,  and  en- 
try of  a  junior  patentee  on  a  part  of  the  interlock  only  extends 
to  the  part  thereof  actually  occupied  by  him.54 

§   124.  Equity  jurisdiction. 

In  the  days  of  fictions,  when  a  judgment  in  ejectment  was  not 
conclusive,  equity  had  jurisdiction  to  enjoin  frequent  actions  of 

52.  Code,    §   2917;    Redford   v.    Clarke,    100   Va.    115,    40    S.    E.    630; 
Merryman  v.  Hoover,  107  Va.  485,  59  S.  E.  483. 

53.  McMurray  v.  Dixon,  105  Va.  605,  54  S.  E.  481;  Code,  §  2918. 

54.  Fry  v.  Stowers,  98  Va.  417,  36  S.   E.  482;  for  a  full  discussion 
of  the  subject,  giving  the  law  elsewhere  as  well  as  in  Virginia,  see 
3  Va.  Law  Reg.  763,  843;  4  Va.  Law  Reg.  1,  8,  127,  138,  557;  5  Va. 
Law  Reg.  810;  6  Va.  Law  Reg.  1. 


§    125  VERDICT  207 

ejectment  after  there  had  been  repeated  trials.     Such  a  bill  was 
called  a  bill  of  peace. 

Where  a  party  has  a  complete  and  adequate  remedy  at  law, 
equity  has  no  jurisdiction.  The  bill  in  such  case  is  called  an 
ejectment  bill,  and  is  demurrable.55  Equity  does  have  jurisdic- 
tion, however,  to  quiet  the  title  to  real  estate  by  removing  clouds 
therefrom,  but  only  those  who  have  a  clear  legal  and  equitable 
title  to  land  and  are  in  possession  thereof  can  invoke  the  aid  of 
a  court  of  equity  to  give  them  peace,  or  to  dissipate  a  cloud  on 
the  title.  If  a  person  is  out  of  possession  but  has  the  legal  title, 
his  remedy  at  law  by  ejectment  is  full,  adequate  and  complete. 
If  he  has  only  an  equitable  title,  he  must  acquire  the  legal  title 
and  then  bring  ejectment.56 

§125.   Verdict. 

If  the  action  be  against  several  defendants,  and  a  joint  pos- 
session of  all  be  proved,  and  the  plaintiff  be  entitled  to  a  ver- 
dict, it  should  be  against  all  whether  they  plead  separately  or 
jointly.57  The  verdict  in  ejectment  is  required  to  be  very  spe- 
cific. It  must  set  out  with  particularity,  either  directly  or  by 
reference,  the  premises  recovered,  and  must  specify  the  estate 
found  in  the  plaintiff,  whether  in  fee,  for  life  or  years,  but  if  the 
verdict  is  simply  excessive  as  to  the  amount  of  land  recovered, 
the  court  may  put  the  plaintiff  on  terms  to  release  the  excess  or 
submit  to  a  new  trial,  and  this  may  be  done,  even  by  the  appel- 
late court.58  Where  the  plaintiff  claims  the  whole  premises  in 
his  declaration,  but  the  proof  shows  he  is  only  entitled  to  an  un- 
divided interest  therein,  a  verdict  for  that  interest  is  proper.59 
So  "if  the  action  be  against  several  defendants,  and  it  appear  on 
the  trial  that  any  of  them  occupy  distinct  parcels  in  severally  or 
jointly,  and  that  other  defendants  possess  other  parcels  in  sev- 

55.  Stearns   v.   Harman,   80   Va.  48;   Jones  v.   Fox,  20   W.   Va.   370. 

56.  Tax  Title  Co.  v.  Denoon,  107  Va.  201,  57   S.   E.  586;   Hitchcox 
v.  Morrison,  47  W.  Va.  205,  34  S.  E.  993;  Frost  v.  Spitley,  121  U.  S. 
552. 

57.  Code,   §   2737. 

58.  Fry  v.  Stowers,  98  Va.  417,  36  S.  E.  482;  cf.  Mclntyre  v.  Smyth, 
108  Va.  736,  62  S.  E.  930. 

59.  Code,  §  2739;  Callis  v.  Kemp,  8   Gratt.  78. 


208  EJECTMENT  §    126 

eralty  or  jointly,  the  plaintiff  may  recover  several  judgments 
against  them,  for  the  parcels  so  held  by  one  or  more  of  the  de- 
fendants, separately  from  others."60  And  he  may  recover  any 
specific  or  undivided  part  or  share  of  the  premises  though  it  be 
less  than  he  claimed  in  his  declaration.  "If  the  jury  be  of  opin- 
ion for  the  plaintiffs,  or  any  of  them,  the  verdict  shall  be  for  the 
plaintiffs,  or  such  of  them  as  appear  to  have  right  to  the  posses- 
sion of  the  premises,  or  any  part  thereof,  and  against  such  of 
the  defendants  as  were  in  possession  thereof  or  claimed  title 
thereto  at  the  commencement  of  the  action."61  "Where  the 
right  of  the  plaintiff  is  proved  to  all  the  premises  claimed,  the 
verdict  shall  be  for  the  premises  generally  as  specified  in  the  dec- 
laration, but  if  it  be  proved  to  only  a  part  or  share  of  the  prem- 
ises, the  verdict  shall  specify  such  part  particularly  as  the  same 
is  proved,  and  with  the  same  certainty  of  description  as  is  re- 
quired in  the  declaration."62  "If  the  verdict  be  for  an  undi- 
vided share  or  interest  in  the  premises  claimed,  it  shall  specify 
the  same,  and  if  for  an  undivided  share  or  interest  of  a  part  of 
the  premises,  it  shall  specify  such  share  or  interest,  and  de- 
scribe such  part  as  before  required."63  "The  verdict  shall  also 
specify  the  estate  found  in  the  plaintiff,  whether  it  be  in  fee  or 
for  life,  stating  for  whose  life,  or  whether  it  be  a  term  of  years, 
and  specifying  the  duration  of  such  term."64 

§   126.   Judgment. 

Unlike  unlawful  detainer,  a  judgment  in  ejectment  is  conclu- 
sive between  the  parties.  If  the  right  or  title  of  the  plaintiff  ex- 
pires after  commencement  of  the  suit,  but  before  trial,  the  plain- 
tiff is  entitled  to  judgment  for  his  damages  sustained  from  with- 
holding the  premises.65  A  saving  is  made  in  favor  of  infants 
and  insane  persons  against  whom  the  judgment  is  no  bar  to  an 
action  commenced  within  five  years  after  the  removal  of  dis- 
ability. 

60.  Code,  §  2738. 

61.  Code,  §  2744. 

62.  Code,   §  2746. 

63.  Code,  §  2747. 

64.  Code,  §  2748. 

65.  Code,  §  2749. 


CHAPTER  XV. 

DETINUE. 

§  127.  Object  of  the   action. 

§  128.  Essentials  to  maintain  the  action. 

§  129.  Parties. 

§  130.  Description  and  value  of  the  property. 

§  131.  General   issue. 

§  132.  Death  or  destruction  of  property  pendente  lite. 

§  133.  Verdict. 

§  134.   Execution. 

§  135.  Preservation  of  property. 

§   127.   Object  of  the  action. 

The  object  of  the  action  is  to  recover  specific  personal  prop- 
erty and  damages  for  its  detention.  It  is  the  appropriate  action 
for  the  recovery  of  property  of  peculiar  value,  especially  when 
it  has  a  pretium  affectionis  attached,  or  is  likely  to  appreciate 
in  value.  For  these  two  reasons  the  action  was  formerly  very 
common  in  Virginia  for  the  recovery  of  slaves.  In  detinue,  the 
recovery  is  of  the  specific  property  itself,  if  to  be  had,  and  if 
not,  its  alternative  value  at  the  time  of  the  verdict;  and  the  re- 
covery embraces  any  increase  of  the  property  between  the  time 
of  action  brought  and  the  date  of  the  verdict,  although  not  spe- 
cifically claimed  in  the  declaration.  In  many  jurisdictions,  re- 
plevin is  preferred,  because  in  that  action  the  plaintiff  obtains 
possession  at  the  beginning  of  the  action  instead  of  at  the  end, 
as  in  detinue.  In  most  of  the  States  detinue  has  been  super- 
seded by. the  modern  action  of  replevin,  but  in  Virginia  replevin 
has  been  abolished.  Ordinarily  no  demand  is  necessary  for  the 
delivery  of  the  property  before  action  brought,  but,  where  the 
possession  was  lawfully  obtained  but  that  possession  has  ceased 
to  be  lawful,  a  demand  is  necessary  before  action  in  order  to 
make  the  detention  unlawful.  It  seems  to  have  been  thought 
originally  that  detinue  only  lay  where  the  taking  was  lawful,  but 
the  detention  was  unlawful — the  action  being  for  the  unlawful 
detention — and  that  replevin  lay  only  where  the  taking  was  un- 

—14 


210  DETINUE  §§    128-129 

lawful.    Now  in  Virginia  detinue  lies  in  either  case,  and  in  those 
States  where  replevin  is  used  that  action  also  lies  in  either  case.1 

§   128.  Essentials  to  maintain  the  action. 

It  is  said  that  in  order  to  maintain  the  action  of  detinue  these 
points  are  necessary:  (1)  The  plaintiff  must  have  property  in 
the  thing  sought  to  be  recovered;  (2)  he  must  have  the  right  to 
its  immediate  possession;  (3)  it  must  be  capable  of  identifica- 
tion; (4)  the  property  must  be  of  some  value,  and  (5)  the  de- 
fendant must  have  had  possession  at  some  time  prior  to  the  in- 
stitution of  the  action.  While  detinue  will  lie  for  the  recovery 
of  a  promissory  note  which  has  not  been  paid,  it  will  not  lie  if 
the  note  has  been  paid  or  if  founded  upon  such  consideration  as 
would  entitle  the  maker  to  rescind  the  contract  for  fraud.2  The 
refusal  is  based  on  the  ground  that  what  is  sought  to  be  recov- 
ered is  of  no  value. 

§   129.   Parties. 

Generally,  the  plaintiff  must  be  some  person  who,  at  the 
commencement  of  the  action,  has  a  general  or  qualified  prop- 
erty in  the  chattel,  and  the  right  to  immediate  possession.  Any 
kind  of  rightful  possession  is  sufficient  against  a  wrongdoer.  If 
the  plaintiff  never  had  possession,  but  his  title  to  the  property 
carries  with  it  the  right  of  possession,  he  may  recover  on  the 
strength  of  his  legal  title  alone.3  If  personal  property  conveyed 
in  trust  is  wrongfully  converted  by  a  third  person,  an  action 
therefor  may  be  maintained  by  the  trustee  only  and  not  by  the 
beneficiary,  even  though  the  debt  secured  be  not  due.4  Detinue 
will  not  lie  against  a  defendant  who  never  had  possession,  but 
it  will  lie  against  one  who  had  possession  before  action  brought 

1.  4  Min.   Inst.  450;   Graves'   Notes   on   PI.  21,  22;   Morris  v.   Pere- 
goy,  7  Gratt.  373;  Code,  §  2899. 

2.  Hefner  v.  Fidler,  58  W.  Va.  159,  52  S.   E.  513. 

3.  Lynch  v.  Thomas,  3  Leigh  682;  Hardaway  v.  Jones,  100  Va.  481, 
41    S.    E.   957;   6   Encl.    PI.    &   Pr.   645,   6;    McDowell   v.    Hall,   2    Bib. 
(Ky.)    610. 

4.  See  Poage  v.  Bell,  8  Leigh  604,  which,  however,  was  an  action 
of  assumpsit. 


§    131  GENERAL  ISSUE  211 

and  parted  with  it  otherwise  than  as  required  by  law.5  Of 
course,  in  such  an  action  if  the  defendant  has  not  the  property, 
a  judgment  for  the  specific  chattel  will  be  unavailing,  but  the 
plaintiff  will  recover  the  alternate  value  and  damages  for  its  de- 
tention. 

§   130.  Description  and  value  of  the  property. 

As  the  action  is  to  recover  specific  personal  property,  it  must 
be  described  with  reasonable  certainty,  so  that  possession  may 
be  given  of  it  if  recovered.  Such  a  general  description  as  "one 
horse,"  or  so  much  money  not  marked  in  any  way,  would  not  be 
sufficient.6  It  is  also  generally  necessary  to  affix  a  value  as  the 
judgment  is  to  be  in  the  alternative,  though  the  omission  of  the 
statement  of  value  would  probably  be  cured  after  a  verdict  af- 
fixing a  value.7 

§   131.   General  issue. 

The  general  issue  in  detinue  is  non-detinet,  that  the  defend- 
ant does  not  detain  the  goods  of  the  plaintiff  sought  to  be  re- 
covered, and  under  this  plea  the  defendant  may  show  the  lack 
of  title  in  the  plaintiff,  or  that  the  defendant  does  not  unlaw- 
fully detain.  If  the  defendant  claims  to  hold  the  property  as  a 
pledge,  or  as  security  for  the  performance  of  some  duty,  this 
fact  must  be  pleaded  specially.  If  the  property  sued  for  be 
dead  at  the  time  the  action  is  brought,  that  fact  may  be  shown 
under  the  plea  of  non-detinet,  and  will  defeat  the  action.  So 
also  if  the  defendant  has  had  adverse  possession  of  the  property 
for  the  statutory  period,  this  gives  him  title,  and  may  be  shown 
under  the  general  issue.  In  fact,  the  defendant  may  give  in 
evidence  any  matter  which  shows  that  the  defendant  does  not 
detain  the  plaintiff's  goods.8 

5.  Lynch  v.  Thomas,   3   Leigh   682;   3   Rob.   Pr.    (New)    469,  470;   4 
Min.   Inst.   540. 

6.  Boggs  r.  Newton,  2  Bib.   (Ky.)   221. 

7.  6   Encl.   PI.   &  Pr.   653. 

8.  Austin  f.  Jones,  Gilmer  341;  Elam  v.  Bass,  4  Munf.  301;  3  Rob. 
Pr.  (New)  468;  6  Rob.  Pr.  (New)  589,  591;  4  Min.  Inst.  450,  539,  705, 
907;  6  Encl.  PI.  &  Pr.  652. 


212  DETINUE  §    133 

"If  the  plaintiff  has  not  had  previous  possession,  but  relies 
solely  upon  legal  title  in  himself,  his  action  may  be  defeated  by 
showing  an  outstanding  title  in  a  third  person.  Under  such  cir- 
cumstances, the  question  is  one  of  title,  pure  and  simple,  and 
the  plaintiff,  in  order  to  prevail,  must  show  that  he  has  it,  as 
in  the  case  of  ejectment  and  unlawful  detainer.  (14  Cyc.  248; 
6  Encl.  PI.  &  Pr.  657.)  But,  if  the  defendant  has  acquired  his 
possession  by  a  wrongful  invasion  of  the  actual  possession  of  the 
plaintiff,  then,  under  a  principle  observed  in  ejectment  and  un- 
lawful detainer  law,  he  cannot  prevail  by  showing  outstanding 
title  or  right  in  a  third  person,  unless  he  claims  under,  or  con- 
nects himself  with,  it  in  some  way.  As  to  this  exception  to  the 
general  rule,  there  is  some  conflict  in  the  decisions ;  but  the  de- 
cided weight  of  authority,  as  well  as  reason,  sustains  it.  (14 
Cyc.  248.)  'Where,  however,  a  plaintiff  in  detinue  has  shown 
a  prior  possession  and  made  out  a  prima  facie  case,  the  defend- 
ant cannot  defeat  a  recovery  by  showing  merely  an  outstanding 
title  in  a  third  person,  without  connecting  himself  therewith.' 
(6  Encl.  PI.  &  Pr.  657.)  "9 

§   132.   Death  or  destruction  of  property  pendente  lite. 

If  specific  personal  property  perishes  pending  the  action,  with- 
out fault  of  the  defendant,  this  cannot  be  given  in  evidence  un- 
der non-detinet,  but  must  be  specially  pleaded  by  a  plea  puis 
darrein  continuance,  as  all  pleas  speak  as  of  the  date  of  the  writ. 
And  this,  on  principle,  would  seem  to  constitute  a  good  defence 
to  the  action,  but  on  this  subject  there  is  conflict  of  authority.10 

§133.   Verdict. 

The  general  rule  is  that  a  verdict  should  respond  to  all  the 
issues  and  to  the  whole  of  each  issue,  and  consequently  in  det- 
inue the  verdict  should  find  for  or  against  the  plaintiff  as  to 
each  item  claimed,  and  should  affix  a  value  to  each,  and  if  it 
fails  to  do  so  the  verdict  is  bad  at  common  law,  and  a  venire  fa- 

9.  Justice  v.  Moore  (W.  Va.),  71  S.   E.  204,  and  cases  cited. 
10.  Austin  v.  Jones,  supra;  Arthur  v.   Ingles,  34  W.  Va.  639,  12  S. 
E.  872;  4  Min.  Inst.  450;  6  End.  PI.  &  Pr.  655,  656,  and  cases  cited. 


§  134  EXECUTION  213 

cias  de  noro  should  be  awarded.11  But  it  is  provided  by  stat- 
ute in  Virginia  that :  "If  on  an  issue  concerning  several  things, 
in  one  count  no  verdict  be  found  for  part  of  them,  it  shall  not 
be  error,  but  the  plaintiff  shall  be  barred  of  his  title  to  the  things 
omitted ;  and  if  the  verdict  omit  the  price  or  value,  the  court  may 
at  any  time  have  a  jury  impaneled  to  ascertain  the  same."12 

§   134.    Execution. 

At  common  law  there  was  no  writ  of  possession,  and  conse- 
quently the  specific  chattel  itself  could  not  be  obtained  and  de- 
livered. The  method  adopted  at  common  law  was  a  writ  of  dis- 
tringas, by  which  other  property,  real  and  personal,  of  the  de- 
fendant was  taken  and  held  until  he  delivered  up  the  specific 
chattel,  and  the  writ  of  fieri  facias  was  issued  for  the  damages 
and  cost.  But  neither  writ  could  be  executed  on  the  property 
recovered  in  the  action,  as  the  judgment  in  the  action  ascer- 
tained the  property  found  to  be  the  property  of  the  plaintiff.13 

11.  Butler  r.   Parks,   1  Wash.  76;   Higgenbotham  v.   Rucker,  2  Call 
313;   6   Encl.   PI.   &   Pr.   658. 

12.  Code,  §  2912. 

13.  Jordan  v.   Williams,   3    Rand.   501;    1    Rob.   Pr.    (old)    569.     The 
following  is   the   form   of  distringas   and   fi.   fa.   given   in   Robinson's 
Forms    366,    367:      "We    command   you,    that   you    distrain    A.    B.    by 
all   his  lands  and  chattels   in  your  bailiwick,   so  that  he  to  the  said 
lands  and  chattels  lay  not  his  hands,  until  some  other  precept  from 
us   thereof  you  have,   so  that  he  deliver  to  C.   D.   two  negro   slaves 
named   Caesar   and    Pompey,    of   the   prices    of  $400    each,    which    the 
said  C.   D.   lately  in  our  Court   of,   etc.,   hath   recovered  against  the 
said  A.  B.  if  the  said  slaves  may  be  had,  but  if  not,  then  the  prices 
aforesaid,   of  them   or  such   of  them   as   may  not  be   had.     We   also 
command  you,  that  of  the  goods  and  chattels  of  the   said  A.   B.  in 
your  bailiwick,   you   cause   to  be   made   $20.10   which   to   the    said   C. 
D.  in  the  same  Court  were  adjudged  as  well  for  his  damages  which 
he  sustained  by  occasion  of  the  detention  of  the  said  slaves,  as  for 
his   costs  by   him    about   his    suit   in   that    behalf   expended;    whereof 
the  said  A.  B.  is  convict,  as  appears  of  record.     And  that  you  have 
the  same  before  the  Justices  of  our  said  Court  at  the  Court-House, 
on  the  first  day  of  next  May  Court,  to  render  unto   the   said  C.   D. 
of   the    damages    and    costs    aforesaid;    and   that   you   also,    then    and 
there  make  known  to  the  said  Justices,  how  you  shall  have  executed 
our  precept  of  Distringas  aforesaid.     And  have  then  there  this  Writ. 
Witness,   etc. 


214  DETINUE  §    135 

Hence,  if  the  defendant  proved  obdurate,  there  was  no  mode 
at  common  law  of  obtaining  possession  of  the  chattel  itself. 
Now,  however,  it  is  provided  by  statute  in  Virginia  that  a  writ 
of  possession  may  be  issued  for  the  recovery  of  specific  prop- 
erty, real  or  personal,  and,  furthermore,  that  when  the  judg- 
ment is  for  personal  property,  the  plaintiff  may,  at  his  option, 
have  a  fieri  facias  for  the  alternative  value,  instead  of  a  writ  of 
possession,  and  the  damages  and  cost,  or  he  may  have  a  writ  of 
distringas.14  It  will  be  observed  that  the  plaintiff  has  the  elec- 
tion in  Virginia  either  to  take  the  specific  personal  property,  or 
its  alternate  value. 

§   135.   Preservation  of  property. 

Under  the  Virginia  statute,  no  provision  is  made  for  giving 
the  plaintiff  possession  of  the  specific  property  sued  for  until 
his  right  thereto  has  been  determined  by  the  action,  but  pro- 
vision is  made  for  the  sheriff  to  take  possession  of  the  property 
in  advance  of  the  decision  of  the  action,  where  affidavit  is  made 
by  the  plaintiff,  his  agent  or  attorney,  that  there  is  good  reason 
to  believe  that  the  defendant  is  insolvent,  or  that  the  property 
will  be  sold,  removed,  secreted  or  otherwise  disposed  of  by  the 
defendant,  or  that  the  property  will  be  destroyed  or  materially 
damaged  or  injured  by  neglect,  abuse  or  otherwise  if  permitted 
to  remain  longer  in  the  possession  of  the  defendant.  Before 
this  can  be  done,  the  plaintiff  is  to  give  bond  with  condition, 
prescribed  by  the  statute,  and  thereafter  provision  is  made  for 
the  property  to  be  returned  to  the  defendant  upon  his  giving 
bond  with  condition  to  pay  costs  and  to  have  the  property  forth- 
coming to  answer  the  judgment.15 

14.  Code,  §§  3584,  3585. 

15.  Code,    §    2907,    ff.      See    post,   §    147,    showing    how    a     plaintiff 
frequently  gels  possession  of  property  at  the  beginning  of  the  ac- 
tion. 


CHAPTER  XVI. 
INTERPLEADER. 

§  136.  Nature  of  the  proceeding. 

§  137.  Rights  of  officer. 

§  138.  Rights  of  creditor. 

§  139.  Rights    of    claimant. 

§  140.  Proceedings  by  the   court. 

§  136.  Nature  of  the  proceeding. 

The  summary  proceeding  of  interpleader  given  by  §  2998  of 
the  Code,  by  which  a  defendant  disclaims  all  interest  in  the 
subject  matter  of  a  suit,  applies  only  to  a  defendant  in  a  pending 
action,  is  sufficiently  set  out  in  the  statute,  and  is  of  such  rare 
occurrence  as  not  to  require  discussion.1 

The  proceeding  proposed  to  be  discussed  in  this  chapter  is 
wholly  statutory,  and  is  to  be  distinguished  from  the  bill  of  in- 
terpleader in  equity  which  is  not  taken  away.2  The  present  pro- 
ceeding is  a  statutory  petition  of  interpleader  given  by  §§  2999 
and  following  of  the  Code.  It  is  in  part  a  substitute  for  replevin, 
which  was  abolished  by  the  Code  of  1849,  and  its  object  is  to 
test  the  ownership  of  property  levied  on  by  a  warrant  of  dis- 
tress, execution,  or  attachment  and  the  remedy  is  available  to 
the  officer  making  the  levy,  to  the  plaintiff  in  the  distress  warrant, 
execution,  or  attachment,  and  to  the  claimant  of  the  property. 

§  137.  Rights  of  officer. 

It  is  the  duty  of  an  officer  holding  a  warrant  of  distress,  an 
execution,  or  attachment  to  levy  on  the  personal  chattels  of  the 
defendant  and  sell  the  same  to  pay  the  claim.  If  he  levies  on 
property,  not  in  the  defendant's  possession,  but  claimed  by  any 
other  person  than  the  defendant,  two  courses  are  open  to  him : 
(1)  He  may  demand  an  indemnifying  bond  of  the  plaintiff  in 
the  execution,  warrant,  or  attachment,  and  if  it  is  given  he  may 
proceed  to  sell  the  property  and  leave  the  parties  to  their  rights 
under  the  indemnifying  bond.  He  is  then  fully  protected,  and 
has  no  right  to  file  a  petition  of  interpleader  under  the  statute, 

1.  See  Runkle  v.  Runkle,  112  Va.  788,  72  S.  E.  695. 

2.  Report  of  Revisors   (1849)  764. 


216  INTERPLEADER  §    137 

or  to  take  any  other  steps  to  test  the  ownership  of  the  property 
levied  on.3  If  the  indemnifying  bond  be  not  given  within  a  rea- 
sonable time  after  notice,  the  officer  may  refuse  to  levy  on  or 
attach  the  property,  or,  if  he  has  already  done  so,  may  restore 
it.4  (2)  Where  no  indemnifying  bond  has  been  demanded  or 
given,  the  officer  holding  the  warrant  or  execution  may  apply 
to  the  circuit  court  of  his  county,  or  the  circuit  or  corporation 
court  of  the  corporation  in  which  the  property  is  taken,  or  to  the 
judge  of  such  court  in  vacation  to  cause  to  appear  before  such 
court  the  party  claiming  the  property  as  well  as  the  party  issuing 
the  process  and  have  their  rights  with  reference  to  the  property 
determined.411  This  application  on  the  part  of  the  officer  is  gen- 
erally made  where  the  plaintiff  in  the  execution  or  warrant  is  a 
fiduciary,  and  does  not  wish  to  give  the  indemnifying  bond 
which  would  be  required  of  him,  and  the  proceeding  generally 
assumes  this  shape  by  an  agreement  between  the  plaintiff  and 
the  officer.5  If  the  levy  is  on  property  in  the  defendant's  pos- 

3.  Code,  §§  3001,    3002,  3003.     The    condition  of  the    indemnifying 
bond  is  given  in  §  3001,  quoted  on  p.  218,  post. 

4.  Code,  §  3002. 

4a.  Code,  §  2999.     This  section  does  not  apply  to  attachments. 

5.  The  following  is  a  copy  of  the  petition  filed  in  Edmunds  v.  Hob- 
bie  Piano  Co.,  97  Va.  588,  34  S.  E.  472: 

"To  the  Honorable  J.  A.  Dupuy,  Judge  of  the  Circuit  Court  of  Roa- 
noke  city,  Virginia: 

"Your  undersigned  petitioner,  T.  R.  Tillett,  sergeant  of  the  city 
of  Roanoke,  would  respectfully  show  unto  your  Honor  that  on  the 
14th  day  of  October,  1899,  there  issued  from  the  clerk's  office  of  the 
Circuit  Court  of  Roanoke  city,  Virginia,  an  execution  in  favor  of 
J.  E.  Edmunds  and  C.  M.  Blackford,  trustees  of  the  Traders'  Ban! 
of  Lynchburg,  Virginia,  against  the  Hobbie  Piano  Company  (i 
corporation),  for  the  sum  of  $1,515.60,  with  interest  and  costs, 
copy  of  which  execution  is  herewith  filed  as  a  part  hereof.  Sai( 
execution  came  into  the  hands  of  your  undersigned  petitioner  at 
nine  o'clock  a.  m.  on  the  14th  day  of  October,  1898,  and  on  the  19tt 
day  of  October,  1898,  your  petitioner  levied  said  execution  on  the 
following  goods  in  the  possession  of  the  Hobbie  Piano  Company, 
in  No.  Salem  avenue,  S.  W.,  city  of  Roanoke,  Virginia,  to  wit: 

[Here   insert   description   of  property  levied  on.] 

"Your  petitioner  would  further  show  that  various  parties  claim  to 
own  the  above-described  property,  and  inasmuch  as  no  indemnify- 
ing bond  has  been  given,  your  petitioner  prays  that  the  said  Ed- 


§§    138-139  RIGHTS   OF    CLAIMANT  217 

session  but  claimed  by  another,  the  mode  of  procedure  is  that 
pointed  out  in  §§  139  and  348,  post. 

§138.  Rights  of  creditor. 

The  creditor  in  any  execution,  attachment  or  distress  war- 
rant may  give  an  indemnifying  bond  to  the  officer  and  let  him 
proceed  to  sell,  unless  the  claimant  has  the  title  to  the  property 
tested, 5a  or  the  creditor  in  any  execution  or  distress  warrant 
may,  without  giving  the  indemnifying  bond,  make  application  to 
the  court  to  try  the  title  to  the  property  in  the  same  summary 
way  pointed  out  in  the  last  preceding  section.6 

§  139.    Rights  of  claimant. 

When  property  claimed  to  be  liable  by  virtue  of  a  distress 
warrant,  execution,  or  attachment  is  in  the  possession  of  any 
of  the  parties  against  whom  such  process  was  issued  but  is 
claimed  by  any  other  person  or  persons,  or  is  claimed  to  belong 
to  any  other  person  or  persons,  it  is  made  the  duty  of  the  officer  to 
proceed  to  execute  the  same,  notwithstanding  such  claim,  unless 
the  claimant  of  the  property,  or  some  one  for  him,  shall  give 
a  suspending  bond  to  suspend  the  sale,  and  shall,  within  thirty 
days  after  such  bond  is  given,  proceed  to  have  the  title  to  such 
property  settled  by  like  proceedings  to  those  hereinbefore  pointed 
out;  and  in  case  such  claimant,  or  some  one  for  him,  fails  to 
give  such  bond  or,  having  given  it,  fails  to  have  such  proceed- 
ings instituted  as  aforesaid  to  settle  the  title  thereof,  such  prop- 
erty shall  be  conclusively  presumed  to  be  the  property  of  the 
party  in  possession,  and  the  officer  who  executes  the  process 
shall  not  be  liable  to  any  such  claimant  for  any  damages  result- 
ing from  the  proper  execution  of  such  process  as  is  required  by 
the  section  quoted  in  the  margin.7  It  will  be  observed  that  for 
this  section  to  apply,  the  property  levied  on  must  be  in  the  pos- 

munds  and  Blackford,  trustees,  also  Hobbie  Piano  Company,  Smith 
and  Barnes  Piano  Company,  Newman  Bros.  Co.,  Home  Building 
and  Conveyance  Co.,  First  National  Bank  of  Roanoke,  Virginia,  be 
summoned  to  appear  before  your  Honor  to  litigate  their  respective 
claims  to  the  property  levied  on  by  your  petitioner." 
5a.  Code,  §§  3001,  2999. 

6.  Code.   §   3000. 

7.  Section  3001  of  the  Code  is  as  follows: 

"If  any  officer  levies  or  is  required  to  levy  an  execution  or  a  war- 
rant of  distress  on  property,  or  to  attach  money  or  property  under 


218  INTERPLEADER  §    139 

session  of  some  of  the  parties  against  whom  the  process  was 
issued  and  must  be  claimed  by  another  person,  and  that  when 
that  is  the  fact  the  claimant  must,  within  thirty  days  after  the 
suspending  bond  is  given,  proceed  to  have  the  title  to  the  prop- 
erty determined.  If  the  property  is  not  in  the  possession  of  a 
defendant  in  the  case,  and  an  indemnifying  bond  has  been  given, 
the  claimant  of  the  property  may  give  a  bond  to  suspend  the 
sale,  and  then  file  his  petition  to  try  the  title  to  the  prop- 
erty.71 The  stringent  provisions  of  §  3001  of  the  Code  do  not 
apply  in  this  case.  Provision  is  made  not  only  for  the  claim- 
ant of  the  property  to  give  the  suspending  bond  hereinbefore 
mentioned,  but  if  he  wishes  in  the  meantime  that  the  posses- 
sion of  the  property  shall  remain  unchanged  pending  the 

an  attachment  issued  either  by  a  justice  or  by  the  clerk  of  any  court, 
and  a  doubt  shall  arise  whether  the  said  money  or  property  is  lia- 
ble to  such  levy  or  attachment  he  may  give  the  plaintiff,  his  agent 
or  attorney  at  law,  notice  that  an  indemnifying  bond  is  required  in 
the   case;   bond  may  thereupon  be   given  by  any  person,  with   good 
security,    payable    to    the    officer    in    a    penalty    equal    to    double    the 
value   of  the  property,  with  condition   to   indemnify  him  against  all 
damage  which  he  may  sustain  in  consequence  of  the  seizure  or  sale 
of   said  property  and  to  pay   to  any   claimant   of   such   property   all 
damage   which   he   may   sustain    in    consequence    of    such    seizure    or 
sale,  and  also  to  warrant  and  defend  to  any  purchaser  of  the  prop- 
erty  such   estate   or   interest   therein   as   is   sold:   provided,   however, 
that  when  the  property  claimed  to  be  liable  by  virtue  of  the  proc- 
ess   aforesaid    is    in    the    possession    of    any    of    the    parties    against 
whom  such  process  was  issued  but  is  claimed  by  any  other  person 
or  persons,  or  is  claimed  to  belong  to  any  other  person  or  persons, 
the   officer   having   such   process   in   his   hands   to   be    executed    shall 
proceed  to  execute  the  same  notwithstanding  such  claim  unless  the 
claimant  of  said  property  or  some  one  for  him  shall  give  a  suspend- 
ing bond   as  provided   by   section   three   thousand   and   three   of  the 
code   of   Virginia,    and    shall   within    thirty   days    after    such    bond   is 
given  proceed  to  have  the  title  to  said  property  settled  in  accordance 
with  the  provisions  of  this  chapter.     And  in  case   such  claimant  or 
some  one  for  him  fails  to  give  such  bond,  or  having  given  such  bond 
fails  to  have   such  proceedings  instituted   as   aforesaid   to   settle   the 
title  thereto,  said  property  shall  be  conclusively  presumed  to  be  the 
property  of  the   party   in   possession,   and   the   officer   who    executes 
such  process  shall  not  be  liable  to  any  such  claimant  for  any  dam- 
ages resulting  from  the  proper  execution  of  such  process  as  is  re- 
quired by  this  section." 
7a.  Code,  §  2999. 


§    140  PROCEEDINGS    BY    THE    COURT  219 

settlement  of  the  question  of  its  ownership,  to  give  a  forthcom- 
ing bond  conditioned  to  have  the  property  forthcoming  at  such 
a  place  and  day  of  sale  as  may  thereafter  be  lawfully  appointed. 
But  if  the  property  is  expensive  to  keep  or  perishable,  a  sale 
thereof  may  be  ordered  notwithstanding  the  forthcoming  bond 
has  been  given.8 

§   140.  Proceedings  by  the  court. 

The  application  should  be  in  written  form,  but  is  not  re- 
quired to  be  sworn  to,  though  Prof.  Minor  thinks  that  that  is 
certainly  the  safer  course  to  pursue.  The  application,  of  course, 
should  set  forth  the  facts  of  the  issuing  of  the  process  and  its 
levy,  stating  upon  what  is  was  levied  and  how  the  claim  arose, 
and  the  names  of  the  parties  in  interest,  and  it  should  con- 
clude with  a  prayer  that  the  court  should  cause  the  proper 
parties  to  come  before  it  to  try  the  title  to  the  property. 
The  statute  designates  the  parties  to  be  summoned  as  the  party 
issuing  the  process  and  the  party  making  the  claim.  The  de- 
fendant in  the  process  is  not  named  as  a  party,  and  it  would 
seem  need  not  be.  When  the  petition  is  filed,  the  court,  or 
judge  in  vacation,  orders  that  the  plaintiff  in  the  writ  and  the 
claimant  of  the  property  appear  before  the  court  at  its  next 
term  to  litigate  their  respective  claims  to  the  property.  When 
the  parties  appear,  the  court,  by  proper  order,  designates  who 
shall  be  plaintiff  and  who  shall  be  defendant,  and  directs  their 
respective  claims  to  the  property  to  be  determined  by  a  jury 
unless  a  jury  be  waived.9  The  judge  is  authorized  to  make 
all  such  rules  and  orders,  and  to  enter  such  judgment  as  to 
cost  and  all  other  matters  as  may  be  just  and  proper.10 

8.  Code,  §  3004. 

9.  Edmunds  v.   Hobbie   Piano  Co.,  97  Va.  590,  34  S.   E.  472. 
10.  Code,  §  3000. 


CHAPTER  XVII. 
REPLEVIN. 

§  141.  Nature  of  action  at  common  law. 

§  142.  The  declaration. 

§  143.  Different  kinds  of  replevin. 

§  144.  The  defence. 

§  145.  The  judgment. 

§  146.  The  modern  action   of  replevin. 

§  147.  Replevin  in  Virginia. 

§   141.   Nature  of  action  at  common  law. 

At  common  law,  as  will  be  remembered,  the  landlord  had  the 
right  in  person  or  by  an  agent  selected  by  him,  called  a  bailiff, 
to  distrain  or  take  possession  of  the  personal  property  of  his 
tenant  as  a  security  for  his  rent.  As  might  reasonably  have 
been  expected,  landlords  sometimes  distrained  when  no  rent 
was  due,  or  upon  goods  not  liable  to  distress,  and  otherwise 
illegally  possessed  themselves  of  the  goods  of  their  tenants. 
It  became  necessary,  therefore,  to  devise  some  means  by  which 
the  right  of  the  tenant  to  the  possession  of  his  personal  property 
might  be  tried,  and  it  was  desirable  that  the  tenant  should  have 
possession  of  his  property  pending  litigation  to  try  the  right 
of  distress.  To  accomplish  this  result  the  tenant  was  allowed 
to  make  complaint  to  the  sheriff  (or  in  chancery,  at  an  earlier 
date),  of  a  wrongful  seizure  of  his  goods,  and  (upon  giving 
security  to  prosecute  a  suit  against  the  landlord  for  his  wrong- 
ful seizure,  and  if  cast  in  the  suit,  to  return  the  goods  to 
him),  a  writ  was  issued  by  the  sheriff  to  his  bailiff,  called  a 
writ  of  replevin,  directing  him  to  replevy  the  goods ;  that  is, 
take  them  from  the  landlord  and  deliver  them  to  the  tenant. 
Whereupon,  or  at  the  same  time,  the  tenant  instituted  his 
action  (called  an  action  in  replevin)  against  the  landlord, 
for  the  purpose  of  recovering  damages  for  his  wrongful  seizure 
and  detention  of  the  goods.  Having  gotten  the  goods  them- 
selves in  the  first  instance,  if  he  now  recovers  damages  for  the 
unlawful  seizure  and  detention  and  the  costs  of  his  suit,  this 
would  do  him  complete  justice.  The  right  to  recover  damages, 


§§    142-144  THE  DEFENCE  221 

however,   necessarily   involved   the  legality   of   the   seizure   and 
detention. 

§   142.   The  declaration. 

The  declaration  in  replevin  recites  that  the  landlord  has  been 
summoned  to  answer  the  tenant  of  a  plea  "Wherefore  he  took 
the  cattle"  of  the  tenant  "and  unjustly  detained  the  same  against 
sureties  and  pledges  until;"  etc.  (or,  if  written  out  in  full,  "un- 
til they  were  replevied  by  the  sheriff"),  "and  thereupon  the 
tenant,  by  his  attorney,  complains  for  that  the  landlord, 
on  the  *  *  *  day  of  *  *  *,  in  the  parish  of  *  *  *, 
at  the  county  of  *  *  *,  in  a  certain  close,  took  the  cattle  of 
the  tenant,  of  great  value,  to-wit,  of  the  value  of  *  *  *,  and 
unjustly  detained  the  same  against  sureties  and  pledges,  until, 
etc.  (as  above),  wherefore  the  tenant  says  that  he  is  injured 
and  hath  sustained  damages  to  the  amount  of  *  *  *,  and 
therefore  he  brings  his  suite."  Great  particularity  was  required 
in  describing  the  goods  taken  and  their  value,  and  the  place 
where  they  were  taken. 

§   143.  Different  kinds  of  replevin. 

It  seems  reasonably  certain  that  such  was  the  origin  of 
the  action,  but  it  was  soon  extended  to  all  kinds  of  wrongful 
taking,  whether  by  a  landlord  or  other  person.  It  did  not  apply 
to  a  wrongful  detention,  where  the  taking  was  lawful.  Usually 
the  sheriff  found  the  property  and  replevied  it,  and  hence  the 
owner  only  needed  to  be  reimbursed  his  damages  for  the  wrong- 
ful seizure.  Where  this  was  true,  it  was  said  to  be  replevin 
in  the  detinuit,  but  if  he  could  not  find  the  goods  so  as  to 
replevy  them,  the  declaration  was  so  changed  as  to  allege  that 
the  defendant  detains  (i.  e.,  now  detains),  the  goods  of  the 
plaintiff,  and  he  sought  to  recover  their  value  as  a  part  of 
his  damages.  This  was  replevin  in  the  detinet.  If  he  found 
and  replevied  only  a  part  of  them,  then  the  action  would  be  in 
the  detinuit  as  to  those  found,  and  detinet  as  to  the  residue. 

§   144.   The  defence. 

The  defendant  might  deny  ever  having  taken  the  goods  at 
all.  Then  his  plea  would  be  non  cepit.  If  he  admitted  the 


222  REPLEVIN  §§'  145-146 

taking,  but  sought  to  justify,  as  for  a  trespass,  etc.,  he  did  so 
by  a  plea  in  confession  and  avoidance,  admitting  title  in  the 
plaintiff,  but  setting  up  a  counterclaim  as  for  rent  due,  or 
damages  suffered,  and  praying  a  return  of  the  cattle,  or  a 
security  therefor.  If  this  defence  was  set  up  by  a  defendant 
who  had  seized  the  cattle  in  his  own  right,  he  was  said  to 
make  an  avowry,  if  by  one  who  acted  in  the  right  or  for 
the  benefit  of  another,  he  was  said  to  make  cognizance.  As 
both  avowry  and  cognizance  asked  for  a  return  of  the  cattle, 
or  security  to  answer  for  a  claim  therein  set  forth,  there  were 
two  actors  in  the  action — both  plaintiff  and  defendant  were 
actors.  The  claim  of  the  defendant  was  set  forth  in  full  and 
with  particularity  in  the  avowry  or  cognizance,  and  to  this 
the  plaintiff  pleaded  just  as  an  ordinary  defendant  would  plead 
to  a  declaration  of  a  plaintiff.  The  avowry  or  cognizance 
was  treated  as  a  complaint,  and  the  nominal  plaintiff  became 
a  real  defendant  to  a  cause  of  action  asserted  by  the  nominal 
defendant.  To  avoid  confusion,  the  words  "plaintiff"  and  "de- 
fendant" will  be  used  to  designate  the  parties  as  they  stood 
at  the  beginning  of  the  action. 

§   145.   The  judgment. 

If  the  plaintiff  succeeded  in  the  action,  judgment  was  given 
in  his  favor  for  damages  and  costs.  If  he  already  had  the 
specific  property,  this  would  be  full  justice,  if  not,  the  same 
end  was  attained  by  including  in  his  damages  the  value  of  the 
specific  property  detained.  If  the  defendant  succeeded,  there 
was  generally  a  judgment  for  the  restitution  of  the  property  and 
for  costs,  or  a  money  judgment  for  the  value  of  the  goods 
and  the  costs.  It  seems  that  the  defendant  had  the  option 
of  taking  the  latter  if  he  desired.  The  characteristic  feature  of 
the  action  was  the  restitution  of  the  specific  property  to  the  plain- 
tiff in  the  beginning  of  the  action  instead  of  the  end. 

§   146.  The  modern  action  of  replevin. 

This  applies  to  all  kinds  of  wrongful  taking  or  detention,  and 
is  brought  for  the  recovery  of  specific  personal  property,  and 
not  mere  damages.  When  the  taking  is  wrongful,  it  is  called 


§'    147  REPLEVIN    IN    VIRGINIA  223 

replevin  in  the  cepit,  when  the  taking  is  lawful  but  the  detention 
not,  it  is  called  replevin  in  the  detinet.  The  action  lies  for  the 
recovery  of  specific  personal  property.  The  title  requisite  to 
maintain  the  action  is  the  same  as  in  detinue.  If  the  original 
taking  and  the  subsequent  detention  were  wrongful,  no  de- 
mand before  action  brought  is  necessary,  but  the  rule  is  other- 
wise if  the  detention  only  is  wrongful.  Generally  statutes  require 
(where  property  is  to  be  delivered  to  the  plaintiff  at  the  be- 
ginning of  the  action),  of  the  plaintiff  a  bond,  with  sufficient 
sureties,  conditioned  to  prosecute  the  action,  and  to  return  the 
property  if  a  return  is  ordered,  and  to  pay  all  costs  and  dam- 
ages adjudged  to  the  defendant.  When  the  action  is  brought, 
and  the  bond  given,  the  sheriff  is  directed  to  seize  the  property 
mentioned  and  deliver  it  to  the  plaintiff.  If  no  bond  is  given, 
and  the  sheriff  makes  the  seizure  and  delivery,  he  is  liable 
on  his  official  bond  for  whatever  damages  the  defendant  suffers 
by  reason  thereof.1 

§   147.   Replevin  in  Virginia. 

The  action  of  replevin  has  been  abolished  in  Virginia  and 
is  substituted  by  detinue  in  most  cases,  and  by  delivery  or 
forthcoming  bonds,  and  interpleader  proceedings  in  others. 
Under  the  Virginia  statute  relating  to  detinue,  while  the  plain- 
tiff cannot  obtain  possession  of  the  specific  property  sued  for 
at  the  beginning  of  the  action,  yet  upon  affidavit  that  there 
is  good  reason  to  believe  that  the  defendant  is  insolvent  so 
that  recovery  against  him  would  prove  unavailing,  or  that  the 
property  would  be  sold,  removed,  secreted,  or  otherwise  dis- 
posed of,  or  that  it  would  be  destroyed  or  materially  damaged 
or  injured  by  neglect,  abuse,  or  otherwise,  if  permitted  to  re- 
main longer  in  the  possession  of  the  defendant,  and  upon  giving 
the  bonds  required,  the  property  may  be  taken  from  the  pos- 
session of  the  defendant  into  the  custody  of  the  officer,  and 

1.  The  following  authorities  are  applicable  to  the  several  sections 
of  this  chapter:  1  Chit.  Pleading  145,  et  seq.;  3  Bl.  Com.  147,  151; 
Martin's  Civil  Code,  Pro.,  §  105,  et  seq.;  Phillips'  Code  PL,  §§  106, 
107.  491,  492.  For  form  of  complaint  under  Codes,  Phillips,  §  492; 
24  Am.  &  Eng.  Encl.  L.  (2nd  Ed.)  475,  ct  seq. 


224  REPLEVIN  §    147 

unless  the  defendant  gives  a  proper  forthcoming  bond,  it  is 
the  duty  of  the  officer  to  hold  the  property  until  the  decision 
of  the  action.2  While  there  is  no  provision  of  law  authorizing 
or  requiring  it,  the  officer  is  generally  well  content  to  turn  the 
property  over  to  the  plaintiff  who  has  given  the  bond  to  be 
held  by  him  until  the  action  is  decided,  so  that  in  the  practical 
application  of  the  law  the  plaintiff  very  frequently  gets  pos- 
session of  the  property  at  the  beginning  of  the  action.3 

2.  Code,   §   2907   and   following. 

3.  For  history  of  the  action  of   replevin   in   Virginia,   see   Allen  v. 
Hart,  18  Gratt.  722;  for  procedure  on  a  forthcoming  bond  given  for 
rent,   see  ante,  §   10. 


CHAPTER  XVIII. 
TRESPASS  AND  TRESPASS  ON  THE  CASE. 

§  148.  Meaning  of  terms. 

§  149.  Distinction  between   trespass  and  case. 

§  150.  Species  of  trespass  vi  et  armis. 

Trespass  to  the  person. 

Trespass    de   bonis    asportatis. 

Trespass  quare  clausum  fregit. 

Trespass   to   try   title. 

False    Imprisonment. 

§  151.  Species  of  trespass  on  the  case  ex  delicto. 
§  152.  General   issues. 

§   148.   Meaning  of  terms. 

The  action  of  trespass  ri  et  armis  is  usually  spoken  of  simply 
as  "trespass"  and  the  action  of  trespass  on  the  case  simply 
as  "case." 

§   149.   Distinction  between  trespass  and  case. 

The  action  of  trespass  is  used  to  recover  damages  for  in- 
juries to  persons  or  property  which  result  directly  from  the 
force  applied,  while  the  action  of  trespass  on  the  case  is  used 
to  recover  damages  for  injuries  to  persons  or  property  which 
result  indirectly  from  the  force  applied.  At  common  law  and 
in  the  early  English  cases  this  distinction  was  insisted  upon, 
but  frequently  it  was  difficult  to  determine  which  of  the  two 
actions  should  be  brought,  and  so  in  a  number  of  cases  they 
were  held  to  be  concurrent,  and  it  was  said  that  "where  an 
act,  though  not  wilful,  is  the  result  of  negligence  and  the 
immediate  and  direct  cause  of  the  injury,  trespass  vi  et  armis 
will  lie,  and  that  trespass  on  the  case  will  also  lie  though 
the  act  be  violent  and  the  injury  immediate,  unless  wilful,  if 
occasioned  by  the  carelessness  or  negligence  of  the  defendant."1 
Finally  the  question  was  put  at  rest  in  Virginia,  as  it  has 
been  generally  elsewhere,  by  declaring  that  "in  any  case  in 

1.  Jordan   7-.    Wyatt,    4    Gratt.    159. 
—15 


226  TRESPASS  AND  TRESPASS  ON  THE  CASE         §  149 

which  an  action  of  trespass  will  lie,  there  may  be  maintained 
an  action  of  trespass  on  the  case."2  In  an  early  Virginia  case,3 
where  the  defendant  negligently  discharged  his  gun  in  a  public 
street,  wounding  the  plaintiff  in  the  leg,  it  was  held  that 
trespass  and  not  case  was  the  proper  action.  This  case  dis- 
cusses the  distinction  between  trespass  and  case,  and  reaches 
the  conclusion  that  if  the  injury  is  the  direct  and  immediate 
result  of  the  force  set  in  motion  by  the  defendant,  the  action 
should  be  trespass,  although  the  force  was  set  in  motion  by 
negligence  and  not  by  intention,  thus  making  the  immediateness 
of  the  injury,  and  not  the  intention  or  want  of  intention,  the  test. 
It  was  also  held  that  charges  for  expenses  paid  to  doctors,  nurses, 
and  other  incidental  expenses  of  being  cured,  may  be  shown  in 
aggravation  of  damages  and  be  recovered.  It  is  fvirther  said 
that  in  trespass  vi  et  armis  it  is  immaterial  whether  the  injury 
be  committed  wilfully  or  not.4  In  a  later  Virginia  case,  the 
court  (after  quoting  Scott  v.  Shepherd,  3  Wilson  403  (The 
Squib  Case),  to  the  effect  that  "whether  the  injury  occasioned 
by  the  act  be  immediate  and  direct  or  not  is  the  criterion, 
and  not  whether  the  act  be  wilful  or  not.  If  the  injury  be 
immediate  and  direct,  it  is  trespass  zn  et  armis,  if  consequential 
it  would  be  trespass  on  the  case;")  further  discusses  the  dis- 
tinction between  trespass  and  case  as  follows :  "The  distinction 
thus  taken  is  perhaps  as  well  drawn  as  it  could  be  in  a  brief 
definition,  but  there  is  some  degree  of  vagueness  in  the  terms 
employed,  so  as  to  vary  the  sense  according  to  the  mode  or 
circumstance  of  the  act  in  reference  to  which  they  are  under- 
stood; and  this  requires  some  precision  and  even  nicety  in 
ascertaining  the  proper  mode  or  circumstance.  The  terms  'im- 
mediate' and  'consequential'  should,  as  I  conceive,  be  understood, 
not  in  reference  to  the  time  which  the  act  occupies,  or  the 
space  through  which  it  passes,  or  the  place  from  which  it  is 
begun,  or  the  intention  with  which  it  is  done,  or  the  instrument 
or  agent  employed,  or  the  lawfulness  or  unlawfulness  of  the 
act;  but  in  reference  to  the  progress  and  termination  of  the  act, 

2.  Code,  §  2901. 

3.  Taylor  v.   Rainbow,  2  Hen.  &  Munf.  423. 

4.  See  also  Jordan  v.  Wyatt,  4  Gratt.  151;   Stephen  on  PL,  §  80;  1 
Smith's  Lead.  Cas.  803. 


§    150  SPECIES   OF   TRESPASS   VI   ET    ARMIS  227 

to  its  being  done  on  the  one  hand,  and  its  having  been  done 
on  the  other.  If  the  injury  is  inflicted  by  the  act,  at  any 
moment  of  its  progress,  from  the  commencement  to  the  termina- 
tion thereof,  then  the  injury  is  direct  or  immediate;  but  if 
it  arises  after  the  act  has  been  completed,  though  occasioned 
by  the  act,  then  it  is  consequential  or  collateral,  or,  more  ex- 
actly, a  collateral  consequence. 

"There  is  no  better  illustration  of  the  distinction  than  the  fa- 
miliar case,  commonly  put,  of  throwing  a  log  into  a  highway 
which,  in  its  flight  or  fall,  hits  or  strikes  a  person:  there  the  in- 
jury is  immediate,  and  the  remedy  may  be  trespass;  but  if,  after 
it  has  fallen  and  while  lying  on  the  ground,  a  passenger  stumbles 
over  it  and  is  hurt,  the  injury  is  consequential,  and  the  remedy 
must  be  case."5 

It  will  be  observed  from  the  section  of  the  Virginia  Code 
quoted  above  that  the  common-law  action  of  trespass  zn  et 
arm  is  is  left  as  it  was  at  -common  law  and  that  it  is  only  the 
scope  of  the  action  of  trespass  on  the  case  that  is  changed. 
Inasmuch  as  trespass  on  the  case*  may  be  brought  in  all  in- 
stances where  trespass  would  lie,  the  action  of  trespass  vi  et 
aruiis  has  practically  disappeared  except  in  the  single  instance 
of  assault  and  battery,  or  other  direct  injury  to  the  person. 
All  other  injuries  to  persons  and  property  are  redressed  by 
the  action  of  trespass  on  the  case.  An  assault  and  battery 
may  also  be  redressed  by  the  same  action  under  the  Virginia 
act  and  similar  acts  in  other  states. 

§   150.    Species  of  trespass  vi  et  armis. 

It  is  stated  in  Stephen  on  Pleading6  that  "there  are  three 
species  of  this  action  distinguished  by  reason  of  the  principal 
subject  of  the  action. 

"Trespass  to  the  person,  as  assault,  assault  and  battery,  false 
imprisonment,  and  the  like  cases,  where  actual  or  implied  force 
is  always  present,  though  it  may  be  slight,  or  not  offensively 
used.  It  is  an  appropriate  remedy  with  case  for  seduction  in 
cases  where  there  were  no  grounds  for  trespass  quarc  claiisnm. 

5.  Jordan  r.  Wyatt,  4  Gratt.  154,  155. 

6.  Stephen    on    PI.,    §    80. 


228          TRESPASS  AND  TRESPASS  ON  THE  CASE         §  150 

"Trespass  de  bonis  asportatis  is  brought,  not  to  recover  the 
identical  thing  taken,  but  damages  for  the  illegal  taking  and 
loss  of  the  same  when  the  original  taking  is  forcible  and  un- 
lawful; while  trover  is  the  remedy  for  the  unjust  detention 
and  conversion  of  property,  although  the  original  taking  was 
lawful  and  proper.7  To  maintain  trespass  to  personal  property 
the  plaintiff  must  have  possession,  or  the  right  to  immediate 
possession,  or  constructive  possession.8 

"Trespass  quarc  clausum  fregit  is  the  remedy  for  all  forcible 
entries  upon  land  by  persons  not  entitled  to  the  possession. 
But  since  the  enactment  of  the  statutes  against  forcible  entry 
and  detainer,  it  has  been  held  by  some  courts  that  trespass 
will  lie  for  a  forcible  entry  by  the  owner  against  the  will  of 
of  one  in  possession,  while  other  courts  hold  the  contrary.9 
The  gist  of  trespass  quare  clausum  fregit  is  injury  to  the 
possession.  Title  may  come  in  question,  but  it  is  not  essential 
t*hat  it  should.10  Where  one  is  entitled  to  the  exclusive  profits, 
or  crops  growing  on  land,  this  is  equivalent  to  a  right  of  pos- 
session, and  he  may  maintain  trespass  quare  clausum.^  At 
common  law  he  must  have  had  actual  possession,  but  possession 
is  now  held  to  follow  ownership.12  And  the  owner  may  main- 
tain an  action  for  trespass  to  lands  unless  another  held  the 
possession  under  him  at  the  time  the  act  was  committed,  or 
unless  it  was  held  in  adverse  possession  by  another.13  A  lessee 
under  a  void  lease  may  maintain  the  action  against  a  wrong- 

7.  Dame  v.  Dame,  43  N.   H.  37. 

8.  Howall  v.  Caryll,  50  Mo.  App.  440. 

9.  The    English   decisions   are   not   in   harmony   upon   the   question. 
That  the  action  will  lie  is  held  in  Reedy  v.  Purdy,  41  111.  279;  Duster 
v.   Cowdry,   23   Vt.   635.     The   contrary  is   held   in    Hyatt  v.   Wood,   4 
John   150,  4  Am.   Dec.  258;  Tribble  v.   Frame,  7  J.  J.   Marsh   598,  23 
Am.   Dec.  439.     See   Forcible   Entry  and   Detainer. 

10.  1   Chitty,    PI.    195;    Lambert   v.   Stroother,    Willes    221;    Stahl   v. 
Grover,  80  Wis.  650. 

11.  Wilson    v.    Mackreth,    3    Burr.    1824;    Stultz   v.    Dickey,    5    Binn. 
285;  Myers  v.  White,  1   Rawle  353. 

12.  Smith  v.  Wunderlich,  70  111.  426;  Chandler  v.  Spear,  22  Vt.  383; 
Dean  v.   Comstock,  32   111.   173;   2   Waterman   on   Trespass,   358;   Ya- 
hoola  River  Co.  v.  Irby,  40  Ga.  479. 

13.  Collins  v.   Beatty,   148   Pa.   St.   65. 


§    150  SPECIES  OF  TRESPASS  VI   ET  ARMIS  229 

doer.14  At  common  law  one  in  possession  against  the  right 
of  the  owner  could  not  maintain  the  action  for  an  entry  by 
him.15 

"Trespass  quare  clausum  fregit  was  deemed  an  appropriate 
remedy  for  seduction,  where  the  seduction  took  place  on  the 
premises  of  the  parent  or  master.  The  seduction  was  shown 
in  aggravation  of  the  breaking,  the  declaration  alleging  per 
quod  servitiuin  ainisit.  It  was  early  held  that  a  count  for 
trespass  and  a  count  stating  the  debauchery  might  be  joined. 
Now  either  an  action  of  trespass  vi  et  armis  may  be  maintained, 
or  an  action  on  the  case  founded  merely  on  the  consequences 
of  the  seduction.16 

"In  trespass  quare  clausum  with  an  allegation  of  other  wrongs, 
etc.,  when  the  real  cause  of  action  was  the  seduction  of  the 
plaintiff's  daughter,  if  the  defendant  justified  the  unlawful  entry 
under  a  license  from  the  plaintiff,  the  latter  may  now  assign 
the  seduction  as  the  real  cause  of  the  action ;  and  if  the  license 
was  merely  the  implied  license  of  law,  i.  e.,  by  custom,  the 
recovery  would  cover  the  whole  declaration  by  the  doctrine  of . 
trespass  ab  initio;  otherwise  if  the  license  was  an  express  in- 
vitation."17 

Trespass  to  tr\  title.  There  is  another  form  of  trespass  known 
as  trespass  to  tr\  title.  As  stated  by  Stephen,  it  is  in  form  an 
action  of  trespass  quare  clausum  fregit,  but  with  the  additional 
element  of  a  notice  attached  that  it  is  brought  to  try  title  to  the 
land  in  controversy  as  well  as  to  recover  damages.  It  is  a  statu- 
tory action  entirely,  in  common  use  in  a  number  of  States,  and  in 
some  of  them  has  wholly  superseded  the  action  of  ejectment. 
Like  ejectment,  however,  the  plaintiff  must  recover  on  the 

14.  Graham  v.  Peat,  1  East.  244;  Stahl  v.  Grover,  80  Wis.  650. 

15.  See     Forcible     Entry     and     Detainer;     1     Chitty    195;    Stahl    v. 
Groover,  80  Wis.  650. 

16.  Blagge   v.    Ilsley,    127    Mass.    191,    34    Am.    Rep.    361;    White    v. 
Murtland,  71   111.  250;   Parker  v.   Meek,  3   Sneed    (Tenn.)   29;    Elling- 
ton  f.    Ellington,   47    Miss.   329.      See    Hubbell   v.   Wheeler,    2    Aiken 
(Vt.)  359;  Vanhorn  v.  Freeman,  6  X.  J.  L.  322,  and  note;   Martinely 
v.  Gerber,  2  M.  &  G.  88. 

17.  Hubbell  r.  Wheeler,  2  Aik.  (Vt.)  359;  Moran  v.  Dawes,  4  Cow. 
412. 


230          TRESPASS  AND  TRESPASS  ON  THE  CASE         §  150 

strength  of  his  own  title  and  not  on  the  weakness  of  that 
of  his  adversary.  Mr.  Chief  Justice  Mclver18  thus  points  out  the 
difference  between  an  action  quare  clausum  f  re  git  and  an  action 
of  trespass  to  try  title :  "There  is  this  fundamental  difference 
between  these  two  actions,  viz.:  That  in  the  former,  the  object 
being  to  recover  damages  for  trespass,  upon  the  possession  of 
the  land,  it  is  not  necessary  for  the  plaintiff  to  show  title 
himself,  but  possession  merely ;  while  in  the  latter  the  plaintiff, 
in  order  to  recover,  must  show  title  in  himself,  and  must  re- 
cover upon  the  strength  of  his  own  title,  and  not  upon  the 
weakness  of  his  adversary's  title.  Accordingly,  in  an  action  of 
trespass  quare  clausum  fregit,  when  the  plaintiff  proves  that 
he  is  in  possession  of  a  given  tract  of  land,  and  that  defendant 
has  trespassed  upon  it,  he  is  entitled  to  recover,  unless  the 
defendant  shows  that  he  has  title  to  the  land  himself — not 
that  the  title  is  in  some  third  person,  as  would  be  sufficient 
to  protect  him,  if  the  action  were  an  action  of  trespass  to 
try  titles,  or  that  he  entered  upon  the  land  and  did  the  acts 
complained  of  as  trespasses,  by  the  permission  or  under  a  license, 
from  the  true  owner  of  the  land."  The  statement  in  Stephen 
that  the  action  has  been  abolished  in  South  Carolina  is  in- 
correct.19 The  general  issue  in  the  case  is  not  guilty,  the 
effect  of  which  is  to  deny  both  the  plaintiff's  title  and  the 
trespass  on  the  part  of  the  defendant.  Where  the  defendant 
is  in  possession,  and  the  plaintiff  succeeds  in  his  action,  he 
recovers  the  land  as  well  as  the  damages  and  may  have  a  writ 
of  , possession.20  Statutes  generally  also  provide  for  recovery 
by  defendant  of  compensation  for  permanent  and  valuable  im- 
provements put  upon  the  land  where  the  defendant  in  good 
faith  believed  that  he  had  title  thereto. 

False  imprisonment.  The  action  of  trespass  vi  ct  armis 
was  also  the  proper  action  at  common  law  to  recover  damages 
for  false  imprisonment.  Of  course  under  the  Virginia  statute 
either  trespass  or  case  will  lie.  "False  imprisonment  is  restraint 
of  one's  liberty  without  any  sufficient  legal  excuse  therefor 

18.  Connor  v.  Johnson,  59  S.  C.  115,  37   S.   E.  240. 

19.  Warren  v.  Wilson   (S.  C.  July  5,  1911),  71  S.   E.  818. 

20.  See  on  the  subject  generally  21  End.  PI.   &  Pr.  924  ff;  Steph- 
enson  PL,  §  74;  Warren  v.  Wilson  (S.  C.  July  5,  1911),  71  S.  E.  818. 


§    151         SPECIES   OF   TRESPASS   ON   THE   CASE   EX   DEUCTO  231 

by  \vords  or  acts  which  he  fears  to  disregard,  and  neither  malice, 
ill-will,  nor  the  slightest  wrongful  intention  is  necessary  to  con- 
stitute the  offense."21  Malice  and  want  of  probable  cause  are  only 
material  as  aggravating  the  damages.  It  is  otherwise  in  mali- 
cious prosecution  where  want  of  probable  cause  is  material,  and 
must  be  shown  by  the  plaintiff.  If  special  damages  are  claimed 
in  an  action  for  false  imprisonment,  they  must  be  alleged  in 
the  declaration  and  proved  at  the  trial.22  Under  the  Virginia 
statute,  and  in  fact  generally  under  the  statutes  in  other  States, 
slander,  malice,  malicious  prosecution,  and  false  imprisonment 
may  be  united  in  one  action.  This  could  not  have  been  done 
at  common  law  as  the  action  for  false  imprisonment  there 
would  have  been  trespass  and  not  case.23 

At  common  law  no  action  would  lie  for  death  occasioned 
by  the  wrongful  act  or  neglect  of  another.  It  was  a  personal 
action  which  died  with  the  person.  This  has  generally  been 
changed  by  statute  in  the  States  of  the  Union.  Ample  provision 
has  been  made  for  it  in  Virginia,  and  the  action  is  safeguarded 
against  abatement  by  the  death  of  either  party.24  The  form  of  the 
action  is  not  prescribed  by  the  statute,  but  the  form  usually  and 
most  properly  adopted  is  that  of  trespass  on  the  case,  and  not 
trespass  vi  et  armis.  There  is  one  case  which  it  has  been  held 
that  the  Virginia  statute  upon  the  subject  of  death  by  wrongful 
act  does  not  cover.  If  a  party  inflicts  a  mortal  wound  on  an- 
other and  then  dies  before  his  victim,  no  action  lies  in  favor  of 
the  representative  of  the  victim  against  the  representative  of  the 
wrongdoer  either  at  common  law  or  under  the  Virginia  statute.25 

§   151.    Species  of  trespass  on  the  case  ex  delicto. 

It  will  be  recalled  that  the  action  of  assumpsit  is  a  species 
of  the  action  of  trespass  on  the  case,  but  it  is  at  present  en- 
tirely a  contract  action  and  consequently  is  not  treated  in  this 
connection.  This  form  of  action  is  generally  subdivided  into: 

21.  Xote  67  Am.  St.  Rep.  408. 

22.  8    Encl.    PI.    &    Pr.    841. 

23.  Womack  v.   Circle,   29    Gratt.    192;    13    Encl.   PL    &   Pr.   424;   67 
Am.  St.  Rep.  408. 

24.  Code,  §§  2902,  2906. 

25.  Beavers  z-.  Putnam,  110  Va.  713,  67  S.  E.  353. 


232  TRESPASS  AND  TRESPASS  ON  THE  CASE         §  152 

(1)  Trespass  on  the  case  generally;  (2)  trover  and  conversion; 
(3)  slander,  and  (4)  libel.  Trespass  on  the  case  generally  lies 
to  recover  damages  resulting  from  fraud,  negligence,  malicious 
prosecution,  or  any  other  tort  not  resulting  directly  from  force 
applied  by  the  wrongdoer.26  It  is  the  great  action  in  common 
use  to  recover  for  negligent  injuries  and  may,  under  the  Vir- 
ginia statute,  be  used  to  recover  for  an  injury  to  person  or 
property  whether  the  injury  be  intentional  or  not.  The  specific 
forms  of  malicious  prosecution,  trover,  slander  and  libel 
will  be  separately  treated. 

§  152.   General  issues. 

The  general  issue  in  each  of  the  actions  of  trespass  and 
case  is  "not  guilty."  In  trespass  the  defendant  says  that  he  is 
not  guilty  of  the  said  trespass  above  laid  to  his  charge,  or  any 
part  thereof,  in  manner  and  form  as  the  said  plaintiff  hath 
above  thereof  complained,  and  of  this  he  puts  himself  upon  the 
controversy.  In  case  the  plea  is  the  same  except  the  defendant 
says  he  is  not  guilty  of  the  premises.  In  trespass  in  et  annis 
the  general  issue  of  "not  guilty"  is  a  narrow  general  issue, 
confined  to  a  denial  of  the  allegation  of  the  case  set  forth  in 
the  plaintiff's  declaration.27  The  general  issue  of  "not  guilty" 
in  trespass  on  the  case,  on  the  contrary,  is  a  very  broad  gen- 
eral issue,  and  is  not  at  all  confined  to  a  denial  of  the  case 
made  by  the  plaintiff's  declaration,  and  the  defendant  is  per- 
mitted not  only  to  test  the  truth  of  the  declaration,  but  (with 
a  few  exceptions  such  as  the  act  of  limitations  and  one  or 
two  others)  to  prove  any  matter  of  defence  that  tends  to 
show  that  the  plaintiff  has  no  right  of  action  though  such 
matters  be  in  avoidance  of  the  declaration,  as  for  example,  a 
release  given,  or  satisfaction  made.28 

26.  4  Min.  Inst.  437. 

27.  Stephen  on  PI.,  §  149. 

28.  Stephen  on  PL,  §  151;  4  Min.  Inst.  775. 


CHAPTER  XIX. 
MALICIOUS  PROSECUTION.* 

§  153.  Forms  and  essentials  of  the  action. 

§  154.  Parties. 

§  155.  Termination    of   prosecution. 

§  156.  Effect  of  conviction. 

§  157.  Guilt  of  plaintiff. 

§  158.  Probable  cause. 

§  159.  Malice. 

§  160.  Evidence. 

§  161.  Damages. 

§  162.  Civil   malicious   prosecution. 

§   153.   Forms  and  essentials  of  the  action. 

The  proper  form  of  the  action  is  trespass  on  the  case  gen- 
erally. In  order  to  sustain  the  action,  it  must  be  alleged  and 
proved :  ( 1 )  That  the  prosecution  was  set  on  foot  by  the  now 
defendant  and  that  it  has  terminated  in  a  manner  not  unfavor- 
able to  the  now  plaintiff;  (2)  that  it  was  instituted,  or  pro- 
cured by  the  co-operation  of  the  now  defendant;  (3)  that  it 
was  without  probable  cause,  and  (4)  that  it  was  malicious.2 
It  is  sometimes  a  question  as  to  whether  the  action  should 
be  for  malicious  prosecution,  or  for  false  imprisonment.  It  is 
said:  "The  essential  difference  between  malicious  prosecution 
and  false  imprisonment  is  that  in  malicious  prosecution  the 
imprisonment  must  have  been  under  legal  process  issued  as  a 
result  of  a  prosecution  commenced  or  continued  maliciously  and 
without  probable  cause,  while  false  imprisonment  lies  for  an  im- 
prisonment which  is  extra-judicial  and  without  legal  process,  and 
from  which  the  prosecutor  cannot  escape  liability  by  proving 
that  he  acted  upon  probable  cause  without  malice."3 

1.  This   subject   is  very   fully   discussed   in   a   monographic   note   in 
26  Am.  St.   Rep.   123,   and  by  Judge  Green  in   Vinol  v.  Core,   18  W. 
Va.   1. 

2.  Scott  v.   Shelor,  28  Gratt.  891,   899;   Singer   Man.  Co.  v.   Bryant. 
105   Va.   403,   54   S.    E.   320. 

3.  Note,   26   Am.    St     Rep.    123. 


234  MALICIOUS  PROSECUTION  §§    154-155 

§   154.   Parties. 

All  concerned  in  originating  and  carrying  on  a  malicious 
prosecution  are  jointly  and  severally  responsible.  It  is  not  nec- 
essary that  all  should  have  joined  in  the  affidavit  making  a 
criminal  charge.  It  matters  not  who  is  the  party  on  the 
record,  the  real  prosecutor  may  be  disclosed  by  parol  evidence, 
and  he  will  be  held  liable  if  the  prosecution  proceeded  by  his 
procurement  or  authority.4  As  between  principal  and  agent, 
if  the  agent  acts  within  the  scope  of  his  authority,  the  principal 
is  liable  for  actual  damages.  Malice,  which  is  an  in- 
gredient of  the  offense,  implies  a  wrongful  purpose  or  intent 
and  this  would  require  knowledge,  and  in  the  absence  of  such 
knowledge  the  principal  is  not  liable  for  exemplary  damages. 
Knowledge  of  the  agent  in  such  case  will  not  be  imputed  to  the 
principal.  Actual  knowledge,  however,  is  not  necessary  if  there 
was  a  full  delegation  of  authority  in  the  premises.  This  may 
arise  where  the  agent  is  vested  with  authority  to  do  whatever  he 
thinks  necessary  or  proper  in  the  matter  of  instituting  proceed- 
ings. The  principal,  of  course,  is  bound  if  he  ratifies  the  act, 
or,  knowing  it,  does  not  repudiate  it.  Corporations  are  also 
liable  for  prosecutions  set  on  foot  by  their  agents.5 

§   155.   Termination  of  prosecution. 

It  is  immaterial  how  the  prosecution  was  terminated,  whether 
by  verdict  of  acquittal  on  the  merits,  by  discharge  of  com- 
mitting magistrate,  refusal  of  grand  jury  to  indict  after  hearing 
the  evidence,  entry  of  nolle  prose qui,  or  otherwise.  If  the 
effect  is  a  discharge  on  that  indictment,  dismissal  for  failure 
to  prosecute,  or  any  other  method  which  ends  the  particular 
prosecution  in  a  manner  not  unfavorable  to  the  party  prose- 
cuted is  all  that  is  necessary.  It  was  at  one  time  held  in 
Virginia6  that  the  dismissal  by  a  justice  without  hearing  testi- 
mony, or  the  entry  of  a  nolle  prosequi  was  not  a  sufficient 
termination  of  a  criminal  prosecution  to  authorize  the  defend- 

4.  Scott  v.  Shelor,  28  Gratt.  891;  Cooley  on  Torts   (Students'  Ed.) 
182. 

5.  Forbes    v.   Hagman,    75    Va.    168;    Singer    Man.    Co.    v.    Bryant, 
supra. 

6.  Ward  v.   Reasor,  98  Va.   399,   36   S.   E.   470. 


§§    156-157  GUILT  OF  PLAINTIFF  235 

ant  therein  to  institute  an  action  for  malicious  prosecution  based 
thereon.  This  holding,  however,  has  been  overruled,7  and  it 
is  now  held  that  it  is  sufficient  if  the  prosecution  has  terminated 
in  such  manner  that  it  cannot  be  re-instated  nor  further  main- 
tained without  commencing  a  new  proceeding,  and  that  it  is 
immaterial  that  a  new  proceeding  for  the  same  offense  may  be 
set  on  foot.  To  procure  the  issuance  and  execution  of  a  search- 
-varrant  for  goods  alleged  to  have  been  stolen  is  such  a  prose- 
cution as  may  be  made  the  basis  of  an  action  for  damages  for 
having  sued  the  \varrant  out  maliciously  and  without  probable 
cause,  and  the  failure  to  find  the  goods  upon  the  execution 
of  the  warrant  is  a  termination  of  that  proceeding.  No  other 
trial  or  acquittal  is  necessary  to  support  the  action  for  malicious 
prosecution.8 

§   156.   Effect  of  conviction. 

The  conviction  of  the  accused  on  the  criminal  charge  gen- 
erally prevents  an  action  for  malicious  prosecution  therefor  as 
it  establishes  probable  cause,  but  this  would  probably  not  be 
true  where  the  plaintiff  has  had  no  opportunity  to  be  heard, 
as  in  some  jurisdictions  where  surety  of  the  peace  is  required 
on  ex  parte  affidavits,  or  if  conviction  was  obtained  by  fraud 
or  perjury.9 

§    157.    Guilt  of  plaintiff. 

Although  there  was  no  probable  cause  for  setting  on  foot 
the  criminal  prosecution  against  the  now  plaintiff,  and  no  rea- 
sonable ground  to  have  believed  him  guilty  of  the  offense 
charged,  if  he  was  in  fact  guilty,  he  cannot  maintain  an  action 
for  malicious  prosecution.  The  whole  foundation  of  the  action 
is  injury  to  an  innocent  man.  It  is  said  that:  "The  action 
for  malicious  prosecution  was  designed  for  the  benefit  of  the 
innocent  and  not  of  the  guilty.  It  matters  not  whether  there 
was  probable  cause  for  the  prosecution,  or  how  malicious  may 
have  been  the  motives  of  the  prosecutor,  if  the  accused  is  guilty 

7.  Graves  v.  Scott,   104  Va.   372,  51   S.   E.  821. 

8.  Spangler  v.   Booze.   103   Va.  276,  49   S.   E.  42. 

9.  Note,   26    Am.    St.    Rep.    142;    Carpenter   v.    Sibley    (Cal.),    15    L. 
R.  A.   (N.  S.)   1143. 


236  MALICIOUS    PROSECUTION  §    158 

he  has  no  legal  cause  of  complaint."10      His  guilt,  therefore, 
may  always  be  shown  notwithstanding  his  acquittal. 

§   158.   Probable  cause. 

No  accurate  definition  can  be  given  of  probable  cause,  but 
"belief  in  the  charge,  on  the  facts,  based  on  sufficient  circum- 
stances to  reasonably  induce  such  belief  in  a  person  of  ordinary 
prudence"  will  suffice.  The  prosecutor  must  believe  in  the 
guilt  of  the  accused,  and  there  must  be  reasonable  grounds  on 
which  to  base  the  belief.  Both  must  concur.  At  least,  many 
of  the  cases  so  hold,  but  upon  this  point  there  is  some  conflict. 
What  constitutes  probable  cause  is  generally  a  question  for  the 
court.  Whether  it  exists  is  a  question  for  the  jury,  and  the 
better  practice  seems  to  be  to  submit  the  case  to  the  jury 
upon  hypothetical  instructions.  The  test  of  probable  cause  is 
to  be  applied  as  of  the  time  when  the  action  complained  of 
was  taken.11  Whether  a  conviction  reversed  on  appeal  is  con- 
clusive or  prima  facie  evidence  only  of  probable  cause  is  not 
settled.  In  Womack  v.  Circle,  32  Gratt.  324,  the  action  of 
the  justice  in  requiring  security  of  the  peace  was  held  to  be 
conclusive  evidence  of  probable  cause  which  barred  an  action 
for  malicious  prosecution.  Two  judges  dissented  under  the 
phraseology  of  the  statute  under  which  the  complaint  was  made, 
and  held  that  the  action  of  the  justice,  although  reversed  on 
appeal,  was  only  prima  facie  evidence  of  probable  cause. 

In  Blanks  v.  Robinson,  1  Va.  Dec.  600,  the  dissenting  opinion 
in  the  former  case  was  approved,  and  it  was  held  that  the 
decision  of  the  justice  of  the  peace  convicting  a  party  of 
crime,  although  reversed  on  appeal,  was  only  prima  jade  evi- 
dence of  probable  cause.  This  latter  holding  was  cited  with 
approval  in  Jones  v.  Finch,  84  Va.  208,  4  S.  E.  342.  In  Evans 
v.  Atlantic  C.  L.  Ry.  Co.,  105  Va.  72,  53  S.  E,  3,  the  plaintiff 
in  malicious  prosecution  had  been  convicted  of  larceny  before 
a  justice  of  the  peace.  Subsequently  on  appeal  the  prosecution 
was  dismissed,  and  the  defendant  in  that  prosecution  sued  to 

10.  Newton   v.   Weaver,    13    R.    I.   617;    Note,   26   Am.   St.   Rep.   138; 
Cooley  on  Torts   (Students'  Ed.)  172. 

11.  Cooley    on     Torts     (Students'     Ed.)     170,     172;     Note,     26     Am. 
St.   Rep.   127;   Singer  Man.   Co.  v.   Bryant,   105   Va.  403,   54   S.   E.   320. 


§158  PROBABLE    CAUSE  237 

recover  damages.  No  question  appears  to  have  been  raised 
as  to  the  right  of  the  plaintiff  to  maintain  the  action,  but  the 
case  was  proceeded  with  upon  the  supposition  that  the  con- 
viction before  the  justice -was  prima  facie  only  of  probable 
cause;  and,  while  the  case  was  reversed,  it  was  not  because 
the  judgment  before  the  justice  was  conclusive  evidence  of 
probable  cause.  In  the  recent  case  of  Saunders  v.  Baldwin 
(June  8,  1911),  112  Va.  — ,  71  S.  E.  620,  it  is  held  that  con- 
viction of  larceny  before  a  justice,  though  reversed  upon  ap- 
peal, is  conclusive  evidence  of  probable  cause,  unless  it  be 
shown  that  it  was  procured  by  the  defendant  through  fraud, 
or  by  means  of  testimony  which  he  knew  to  be  false,  and  bars 
an  action  for  malicious  prosecution.  This  conclusion  was  ar- 
rived at  after  mature  deliberation  and  consideration,  and  settles 
the  question  in  Virginia.  It  seems  to  be  sound  upon  principle, 
and  well  supported  by  authority. 

Advice  of  counsel  is  recognized  everywhere  as  a  good  defence 
to  the  action  for  malicious  prosecution.  Whether  the  advice 
of  counsel  is  received  simply  to  repel  malice  or  also  to  show 
probable  cause,  is  a  subject  of  conflict  of  authority.  If  only 
to  repel  malice,  the  malice  might  be  otherwise  shown,  and  then 
the  advice  of  counsel  would  be  unavailing.  The  true  ground 
would  seem  to  be  that  it  is  admissible  for  the  purpose  of 
showing  probable  cause.  In  order  to  defeat  the  action,  how- 
ever, the  party  seeking  to  make  the  defence  must  show  that 
he  made  a  full  and  free  disclosure  of  all  the  facts  with  an  honest 
purpose  of  being  informed  as  to  the  law,  and  was  in  good 
faith  guided  by  such  advice  in  causing  the  arrest  of  the  plain- 
tiff.12 There  is  also  serious  conflict  as  to  whether  a  defendant 
will  be  deprived  of  his  defence  of  "advice  of  counsel"  by 
reason  of  want  of  diligence  in  not  ascertaining  all  the  facts. 
In  Virginia  it  is  held  that  he  will  be  deprived  unless  he  makes 
a  disclosure,  not  only  of  the  facts  within  his  knowledge,  but 
of  those  which  would  have  been  within  his  knowledge  had 
he  made  a  reasonably  careful  investigation  bearing  on  the  guilt 

12.  26  Am.  St.  Rep.  143,  144;  Cooley  on  Torts  (Students'  Ed.) 
173;  Evans  v.  Atlantic  C.  L.  Ry.  Co.,  105  Va.  72,  53  S.  E.  3;  Vinol 
v.  Core,  18  W.  Va.  1. 


238  MALICIOUS    PROSECUTION  §    159 

of  the  plaintiff.13  The  contrary  is  held  in  West  Virginia.14 
In  Iowa  it  is  held  that  a  party  is  required  to  make  to  counsel 
a  full  and  fair  statement  of  all  the  facts  known  to  him,  and 
further,  that  if  he  has  reasonable  grounds  for  believing  that 
facts  exist  which  tend  to  exculpate  the  accused  from  the  charge, 
good  faith  requires  that  he  shall  either  make  further  inquiry 
with  reference  to  these  facts  and  communicate  the  information 
obtained  to  counsel,  or  that  he  should  inform  him  of  his  be- 
lief of  their  existence  in  order  that  he  may  investigate  with 
reference  to  them,  and,  in  forming  his  opinion,  take  into  ac- 
count the  information  obtained  with  reference  to  them,  but 
he  is  not  required  to  do  more  than  this.  He  is  not  required 
to  institute  a  blind  inquiry  to  ascertain  whether  facts  exist 
which  would  tend  to  the  exculpation  of  the  party  accused.15 
The  holding  of  the  Iowa  court  commends  itself  as  the  sound 
doctrine. 

Any  licensed  attorney  not  shown  to  be  in  bad  standing  will 
suffice.  Good  faith  requires  that  the  attorney  shall  not  be  known 
to  be  biased  or  prejudiced.16 

§   159.   Malice. 

What  constitutes  malice  is  a  question  of  law  for  the  court. 
Its  existence  is  a  question  of  fact  for  the  jury.  The  wilful 
doing  of  an  unlawful  act  is  malice  sufficient  to  support  the  action. 
It  is  said  "in  a  legal  sense  any  unlawful  act  done  wilfully  and 
purposely  to  the  injury  of  another  is  as  against  that  person 
malicious."17  Again  "by  malice  is  not  meant  merely  malignity 
or  ill-will,  but  it  includes  every  sinister  or  improper  motive, 
i.  e.,  every  motive  other  than  a  desire  to  bring  to  punishment 
a  party  believed  to  be  guilty  of  crime."18  Malice  and  want  of 
probable  cause  must  concur.  Malice  may  well  be  inferred  from 

13.  Evans  v.  Atlantic  Coast  Line  R.  Co.,  supra. 

14.  Vinol  v.  Core,   18  W.  Va.  1,  72. 

15.  Johnson  v.  Miller,  69  Iowa  562,  58  Am.  St.  Rep.  231;  Note,  26. 
Am.  St.  Rep.  147. 

16.  Note,  26  Am.  St.  Rep.  147. 

17.  Scott  v.  Shelor,  28  Gratt.  891. 

18.  Vinol  v.  Core,   18  W.   Va.   1;   Cooley  on  Torts    (Students'   Ed.) 
179. 


§§    160-161  DAMAGES  239 

the  want  of  probable  cause,  but  the  latter  will  not  be  inferred 
from  the  former.  The  burden  of  proof  of  both  is  on  the 
plaintiff,  and  although  the  want  of  probable  cause  is  a  negative, 
the  burden  is  nevertheless  on  the  plaintiff  to  prove  it.  This 
is  said  to  be  based  on  grounds  of  public  policy.19 

§   160.  Evidence. 

In  order  to  prove  the  want  of  probable  cause  the  plaintiff 
may  offer  evidence  of  his  previous  good  reputation  and  that 
it  was  known  to  his  accuser,  or  should  have  been  known  to- 
him.  Evidence  of  ill-will  on  the  part  of  the  accuser  is  always 
admissible  for  the  purpose  of  showing  malice,  and  so  evidence 
of  other  facts  may  be  shown  which  tend  to  show  that  the 
prosecutor  was  not  acting  in  good  faith.  On  the  other  hand, 
the  defendant  is  allowed  to  show  the  bad  reputation  of  the 
plaintiff  before  the  charge  was  preferred,  both  in  mitigation 
of  damages  and  also  to  show  that  the  prosecution  was  not 
without  probable  cause.  He  may  also  give  in  evidence  other 
facts  tending  to  show  that  he  acted  in  good  faith.20 

§   161.   Damages. 

In  an  action  for  malicious  prosecution  for  a  crime  alleged 
to  have  been  committed  by  the  plaintiff,  the  measure  of  dam- 
ages is  such  an  amount  as  the  jury  may  find  will  compensate 
the  plaintiff  for  the  actual  outlay  and  expenses  about  his  de- 
fence in  the  prosecution  against  him,  for  his  loss  of  time, 
and  for  the  injury  to  his  feelings,  person  and  character  by 
his  detention  in  custody  and  prosecution,  and  the  jury  may 
also,  if  they  find  said  prosecution  to  have  been  commenced 
or  procured  for  private  ends  or  with  reckless  disregard  of  the 
rights  of  the  plaintiff,  give  such  punitive  damages  as  they  think 
proper.21  The  general  rule  in  such  cases  is  to  make  compensa- 
tion for  the  wrong  done,  including  injury  to  the  feelings,  but 
in  exceptional  cases  punitive  damages  may  be  allowed.  If  the 

19.  Scott  v.  Shelor,  28   Gratt.  891;  Singer  Man.  Co.  v.   Bryant,  105 
Va.  403,  54  S.  E.  320;  Note,  26  Am.  St.  Rep.  149. 

20.  Note,  26  Am.  St.  Rep.  156  to  162;  Vinol  v.  Core,  18  W.  Va.  1. 

21.  Vinol  ?.'.  Core,  18  W.  Va.  1. 


240  MALICIOUS    PROSECUTION'  §    162 

case  be  one  in  which  punitive  damages  may  be  properly  allowed, 
evidence  of  the  defendant's  wealth  and  pecuniary  ability  is 
admissible  as  a  means  of  determining  what  would  amount  to 
punishment,  for  what  would  amount  to  punishment  to  one  de- 
fendant would  be  no  punishment  at  all  to  another;  but  if 
the  case  is  not  one  proper  for  punitive  damages,  evidence  of 
the  wealth  or  pecuniary  ability  of  the  defendant  is  inadmis- 
sible.22 If  recovery  is  sought  for  special  damages,  they  must 
be  alleged  and  proved.  Counsel  fees  and  costs  incurred  in 
securing  acquittal  are  special  damages  and  so  are  loss  of  profits 
in  business,  etc. 

§   162.  Civil  malicious  prosecution. 

Ordinarily  no  action  lies  against  a  plaintiff  for  bringing 
frivolous  actions.  The  costs  awarded  against  him  in  the  civil 
action  is  usually  sufficient  penalty  to  deter  repetition ;  but  there 
are  certain  classes  of  civil  actions,  such  as  maliciously  attempt- 
ing to  throw  one  into  bankruptcy,  attachment  of  his  person  or 
property,  proceedings  to  have  him  adjudged  insane  or  put  un- 
der guardianship,  and  the  like,  which  are  injurious  to  property 
rights  of  a  party  by  assaults  on  his  credit.  If  such  actions 
are  set  on  foot  maliciously  and  without  probable  cause  they 
may  be  made  the  basis  of  an  action  for  malicious  prosecution. 
The  same  is  true  where  there  is  a  malicious  abuse  of  process. 
Practically  the  same  rules  apply  to  this  class  of  malicious  prose- 
cutions as  to  those  charging  one  with  a  criminal  offense.23 

22.  Singer  Man.  Co.  v.  Bryant,  105  Va.  403,  54  S.  E.  320. 

23.  McCormick   v.   Williams,   93   Am.    St.    Rep.   454,   and   note;   Ail- 
stock  v.  Moore  Lime  Co.,  104  Va.  565,  52  S.  E.  213  (maliciously  suing 
out    an    attachment);    Forbes    v.    Hagman,    75    Va.    168    (arresting    a 
party  and  holding  him  to  bail). 


CHAPTER  XX. 
TROVER  AND  CONVERSION. 

§  163.  Nature   of  the  action. 

§  164.  Plaintiff's   title. 

§  165.  What  may  be  converted. 

§  166.  What    constitutes    conversion. 

§  167.  Demand. 

§  168.  Return   of  property. 

§  169.  Damages. 

§  170.  General   issue. 

§  171.  Effect  of  judgment. 

§   163.   Nature  of  the  action. 

Trover  and  conversion,  or  trover  as  it  is  usually  called,  is 
a  species  of  that  legal  class  of  actions  known  as  "trespass  on 
the  case."  It  derives  its  name  from  the  French  word  "trouver," 
to  find,  and  the  declaration  alleges  that  the  plaintiff  casually 
lost  his  property  and  the  defendant  found  it  and  converted 
it  to  his  own  use.  The  allegation  of  the  loss  and  finding  was 
a  mere  fiction  and  never  traversable,  and  hence  need  not  be 
alleged.  The  gist  of  the  action  is  the  unlawful  conversion. 
The  action  is  not  to  recover  the  specific  chattel,  but  to  recover 
damages  for  the  conversion  of  the  plaintiff's  property  by  the 
defendant.  It  is  said  that  even  in  the  Code  states,  trover  re- 
mains substantially  the  same  as  at  common  law.1 

Frequently  a  plaintiff  has  an  option  to  bring  either  trover 
or  trespass,  but  it  is  important  to  notice  the  differences  be- 
tween the  two  actions.  This  is  well  pointed  out  by  Cooley2 
as  follows :  "There  are  two  principal  differences  between  the 
actions  of  trespass  and  trover  for  personalty  appropriated  by 
the  defendant;  the  first  of  which  is,  that  in  trespass  there  is 
always  either  an  original  wrongful  taking,  or  a  taking  made 
wrongful  ab  initio  by  subsequent  misconduct,  while  in  trover, 

1.  Boiling  v.  Kirby,  90  Ala.  215,  24  Am.  St.  789,  and  note;  Cooley 
on   Torts    (Students'   Ed.)    417;   21    End.    PL    &   Pr.    1014. 

2.  Cooley  on  Torts   (Students'  Ed.)   418. 

— 16 


242  TROVER  AND  CONVERSION  §    164 

the  original  taking  is  supposed  or  assumed  to  be  lawful,  and 
often  the  only  wrong  consists  in  a  refusal  to  surrender  a  pos- 
session which  was  originally  rightful,  but  the  right  to  which 
has  terminated.  The  second  is,  that  trespass  lies  for  any 
wrongful  force,  but  the  wrongful  force  is  no  conversion  where 
it  is  employed  in  recognition  of  the  owner's  right,  and  with 
no  purpose  to  deprive  him  of  his  right,  temporarily  or  perma- 
nently. Thus,  if  one  take  up  the  beast  of  another,  in  order  to 
prevent  his  straying  away,  and  afterwards  turn  him  out  again, 
he  may  be  liable  in  trespass  for  so  doing,  but  his  act  is  no 
conversion,  because  the  owner's  dominion  is  not  disputed,  and 
the  intent  to  make  a  wrongful  appropriation  is  absent.  In 
many  cases  either  trover  or  trespass  will  lie." 

§   164.  Plaintiff's  title. 

It  is  said  that  "to  maintain  trover,  the  plaintiff  must  show 
a  conversion  of  personal  property  by  the  defendant,  and  that 
the  plaintiff  had,  at  the  time  of  the  conversion,  a  right  of 
property  in  the  thing  converted,  and  also  possession  or  right 
of  immediate  possession  thereof.  The  right  to  the  possession 
must  be  absolute  and  unconditional.  It  is  essential  that  the 
plaintiff  should  have  possessory  title,  i.  e.,  the  right  to  the 
immediate  possession  of  the  goods,  but  this  possessory  title 
may  be  either  general  or  special.  Possession  with  an  assertion 
of  title,  or  even  possession  alone,  gives  the  possessor  such  a 
property  as  will  enable  him  to  maintain  this  action  against  the 
wrongdoer,  for  the  possession  is  prima  facie  evidence  of  prop- 
erty."3 The  action  of  trover  is  given  to  redress  an  injury  to 
the  right  of  possession,  and  in  order  to  maintain  the  action 
it  is  necessary  for  the  plaintiff  to  show  that  he  not  only  has 
the  right  of  property  in,  but  also  that  he  had  a  right  to  the 
immediate  possession  of  the  thing  converted  at  the  time  of  the 
conversion.4  Possession  alone  is  sufficient  as  against  a  mere 
wrongdoer,  but  title  alone  is  not  sufficient  unless  the  plaintiff 
either  had  possession  or  right  to  the  immediate  possession.  A 
mere  bailee  in  possession,  however  special  the  bailment,  may 

3.  Haines  v.   Cochrans,  26   W.   Va.   719. 

4.  Philips  v.   Martiney,    10   Gratt.   333. 


§§    165-166  WHAT  CONSTITUTES   CONVERSION  243 

maintain  the  action  against  the  wrongdoer  and  recover  the 
whole  value  of  the  property,  being  accountable  over,  of  course, 
to  the  general  owner.5 

§    165.   What  may  be  converted. 

Anything  may  be  converted  which  is  the  subject  of  property 
and  is  personal  in  its  nature,  but  the  conversion  must  be  of 
specific  chattels,  not  of  chattels  generally.  For  instance,  trover 
may  be  brought  for  the  conversion  of  a  particular  horse,  but 
not  generally  for  the  conversion  of  "a  horse."  The  action  lies 
only  for  the  conversion  of  specific  chattels,  not  of  realty  or 
things  partaking  of  the  nature  thereof.  It  is  sometimes  said 
that  it  will  not  lie  for  the  conversion  of  money  generally  i.  e., 
unmarked  money,  money  not  in  bags  and  the  like.  The  conver- 
sion of  money  generally  usually  creates  simply  a  money  demand, 
and  the  appropriate  action  would  be  assumpsit.  Upon  this 
proposition,  however,  there  is  conflict  of  authority.6 

§   166.   What  constitutes  conversion. 

"Any  distinct  act  of  dominion  wrongfully  exerted  over 
one's  property  in  denial  of  his  right,  or  inconsistent  with  it 
is  a  conversion."7  Any  appropriation  of  property  in  disregard 
or  defiance  of  the  owner's  rights  in  it  will  amount  to  a  con- 
version and  this  conversion  may  be  proved  in  three  ways : 
(1)  By  a  tortious  taking;  (2)  by  any  use  or  appropriation 
to  the  use  of  the  person  in  possession,  indicating  a  claim  of 
right  in  opposition  to  the  rights  of  the  owner;  (3)  by  refusal 
to  give  up  the  possession  to  the  owner  on  demand.  In  the 
last  case  the  possession  may  have  been  in  the  first  instance 
lawful,  but  ceases  to  be  lawful  upon  refusal  to  deliver  to  the 
owner  on  demand.8  A  misdelivery  by  a  bailee  is  a  conversion,9 
but  the  refusal  of  a  carrier  to  deliver  to  the  party  entitled  is 
not  a  conversion  if  under  the  circumstances  the  refusal  was 

5.  Cooley  on  Torts   (Students'  Ed.)  420,  and  cases  cited. 

6.  Note,   24  Am.  St.   Rep.  818;  21   End.   PI.   &   Pr.   1021,  and  cases 
cited. 

7.  Cooley  on  Torts   (Students'   Ed.)   423,  and  cases   cited. 

8.  Haines  v.   Cochran,   26   W.   Va.   719. 

9.  A.  D.  Blowers  &  Co.  v.  Can.  Pac.  R.  Co.  (C.  C),  155  Fed.  935. 


244  TROVER   AND   CONVERSION  §    167 

qualified  and  reasonable,  and  made  upon  the  ground  that  the 
person  making  the  demand  had  not  supported  it  by  sufficient 
evidence  of  his  ownership  of  the  property,  or  his  right  to  the 
possession  thereof.10  It  is  not  necessary  that  there  should  be 
a  manual  taking  of  property  in  order  to  constitute  a  conversion. 
The  conversion  may  be  by  words  only.  If  the  wrongdoer 
exercises  dominion  over  the  property  to  the  exclusion  of,  or 
in  defiance  of  the  owner's  right,  it  is  in  law  a  conversion.11 
And  so  a  tenant  in  common  in  possession  of  property  may 
be  liable  for  a  conversion  in  case  of  culpable  loss  or  destruc- 
tion by  him.12  If  there  has  been  a  breach  of  bailment  whereby 
the  bailment  is  terminated,  this  usually  constitutes  a  partial 
conversion  and  the  bailor  may  bring  trover,  but  the  bailee  in 
such  case  has  the  right  to  return  the  property  bailed;  but  if  there 
has  been  complete  conversion,  the  owner  is  under  no  obligation 
to  take  the  property  back.13  If  a  horse  be  hired  for  use  at  a 
particular  place  only,  and  the  hirer  carries  the  horse  to  another 
place,  and  it  there  contracts  a  disease  of  which  it  dies,  the  hirer 
is  liable  as  for  a  conversion  if  the  death  was  occasioned  in  con- 
sequence of  the  wrongful  removal,  the  removal  being  held  in 
such  case  to  be  a  conversion.14 

§   167.   Demand. 

If  the  defendant  has  come  into  possession  lawfully  and  with- 
out fault,  it  is  generally  necessary  to  demand  possession  before 
action  brought.  "The  object  of  the  demand  is  to  afford  the  per- 
son in  possession  an  opportunity  to  deliver  the  property  up  with- 
out cost  if  he  have  no  claim.  Jones  v.  Dungan,  1  McCord  129. 
Therefore  when  the  person  in  possession  has  only  a  special  prop- 
erty in  the  goods,  such  as  bailee,  a  demand  made  after  the  goods 
have  passed  out  of  his  possession  and  when  he  could  not  deliver 

10.  Moore  v.   B.   &   O.   R.   Co.,   103   Va.    189,   48    S.    E.   887. 

11.  Note,   24   Am.    St.    Rep.   798. 

12.  Cooley   on   Torts    (Students'   Ed.),   432. 

13.  Cooley   on   Torts    (Students'    Ed.),   437,   438. 

14.  Note,  24  Am.   St.   Rep.  795;   Harvey  v.   Epes,   12   Gratt.  153.     In 
this  latter  case,  the  doctrine  of  breach  of  bailment  by  use  of  prop- 
erty for  a  different  purpose  or  in  a  different  manner  from  that  con- 
tracted for  is  denied  in  an  able  opinion. 


§§  168-169  DAMAGES  245 

them,  would  not  render  his  refusal  to  do  so  a  conversion,  or  be 
evidence  of  conversion.  But  where  the  person  in  possession 
does  not  claim  to  hold  for  another,  then  it  is  immaterial  whether 
the  demand  is  made  before  or  after  he  has  parted  with  the  pos- 
session, for  if  the  goods  have  been  disposed  of,  a  demand  will 
be  considered  as  giving  an  opportunity  of  making  satisfaction 
therefor,  and  not  as  affirming  any  pretended  sale  of  them."15 

§   168.   Return  of  property. 

As  hereinbefore  pointed  out,  where  there  has  been  complete 
conversion,  the  defendant  has  no  right  to  return  the  property, 
and  the  plaintiff  is  under  no  obligation  to  accept  it;  but  where 
the  conversion  is  temporary  only,  as  by  a  breach  of  bailment  in 
the  case  of  hired  property,  it  is  probable  that  the  bailee  may  re- 
turn the  property  and  the  bailor  will  be  bound  to  accept  it.  But 
it  is  said  that  no  fixed  rule  can  be  announced  on  this  subject,  as 
it  lies  largely  in  the  discretion  of  the  court,  but  that  where 
the  taking  was  not  unlawful,  and  the  party  is  not  essentially  in- 
jured, the  defendant  should  be  allowed  to  surrender  it  upon  pay- 
ing the  actual  damages  sustained.16  It  is  provided  in  Virginia 
that  "in  any  personal  action  the  defendant  may  pay  into  court 
to  the  clerk  a  sum  of  money  on  account  of  what  is  claimed,  by 
way  of  compensation  or  amends,  and  plead  that  he  is  not  in- 
debted to  the  plaintiff  or  that  the  plaintiff  has  not  sustained  dam- 
ages to  a  greater  amount  than  the  said  sum,"17  and  that  "the 
plaintiff  may  accept  the  same,  either  in  full  satisfaction  and  then 
have  judgment  for  his  cost,  or  in  part  satisfaction  and  reply  to 
the  plea  generally,  and  if  issue  thereon  be  found  for  the  defend- 
ant, judgment  shall  be  given  for  the  defendant  and  he  shall  re- 
cover his  cost."18 

§   169.   Damages. 

As  a  general  rule,  the  measure  of  damages  where  the  conver- 

15.  Haines  r.  Cochran,  26  \V.  Va.  719,  724;  Cooley  on  Torts   (Stu- 
dents' Ed.)   430,  431. 

16.  Note,   24   Am.    St.    Rep.    808,    809;    Cooley    on    Torts    (Students' 
Ed.),  434. 

17.  Code,   §   3296. 

18.  Code,  §  3297. 


246  TROVER  AND  CONVERSION  §§    170-171 

sion  is  complete  is  the  value  of  the  property  converted  at  the 
time  of  the  conversion,  with  interest  thereon  from  that  date,  but 
there  is  great  conflict  of  authority  on  this  subject.  Values  may 
fluctuate  greatly  in  a  short  time,  especially  in  the  matter  of 
stocks.  Probably  as  near  justice  as  could  be  obtained  would  be 
to  give  to  the  plaintiff  the  value  of  the  property  at  the  time  of 
the  conversion,  together  with  any  advance  which  may  have  taken 
place  within  such  time  as  is  reasonably  necessary  to  replace  it. 
If  the  property  has  depreciated  in  value,  it  would  seem  on 
principle,  that  the  owner  should  be  allowed  to  recover  its  value 
as  of  the  date  of  conversion,  as  he  might  on  that  day  have  sold  it 
and  realized  its  market  value.10  If  property  of  one  is  de- 
livered to  another  by  mutual  mistake  of  fact,  and  is  converted 
by  the  latter,  the  owner  may  recover  the  value  of  the  property 
at  the  time  of  conversion,  with  interest  thereon  from  the  date  of 
the  discovery  of  the  mistake  and  demand  made.20 

§  170.   General  issue. 

The  general  issue  in  trover  is  "not  guilty."  This  is  a  broad 
general  issue  and  under  it  may  be  shown  probably  anything,  ex- 
cept release,  statute  of  limitations,  and  bankruptcy.  The  scope 
of  this  plea  is  so  wide  as  to  have  led  to  the  expression  that  there 
is  no  plea  in  trover  but  release  and  not  guilty,  and  Lord  Holt  is 
quoted  as  saying  "that  he  never  knew  but  one  special  plea  good 
in  trover."  Undoubtedly  many  special  pleas  have  been  held-  ad- 
missible in  this  action  as  not  amounting  to  the  general  issue  but 
the  general  issue,  in  the  absence  of  statute,  would  seem  to  be 
of  the  scope  indicated  above.21 

§    171.   Effect  of  judgment. 

Probably  the  subject  upon  which  the  greatest  diversity  of 
opinion  exists  in  connection  with  trover  is,  when  does  title  to 
personal  property  pass?  The  great  weight  of  authority  is  to  the 
effect  that  title  does  not  pass  simply  by  the  judgment,  but  only 

19.  Cooley   on   Torts    (Students'    Ed.)    435. 

20.  Craufurd  v.  Smith,  93   Va.   623,  23   S.   E.  235. 

21.  6  Rob.  Pr.  599,  and  following. 


§    171  EFFECT   OF    JUDGMENT  247 

upon  satisfaction  of  the  judgment,22  and  such  is  the  English 
rule.  In  Virginia  there  is  no  direct  authority  on  the  subject,  but 
in  Austin  z>.  Jones,  Gilmer,  341,  348,  which  was  an  action  of  deti- 
nue. Judge  Coalter  in  the  course  of  his  opinion  said  obiter:  "But 
trover  will  lie  although  the  property  be  dead,  because  the  time 
of  conversion  gives  the  date  to  which  the  action  relates,  and  the 
very  conversion  may  cause  the  death  of  the  property.  Recov- 
ery in  that  action  amounts  to  a  sale  of  the  property  at  the  time 
of  the  conversion  and  vests  the  property  in  the  defendant  from 
that  time,  so  that  if  he  has  sold  it,  even  pending  the  suit  or  be- 
fore, and  the  plaintiff  never  gets  his  damages,  he  cannot  bring 
detinue  against  the  purchaser."  The  opinion,  however,  was 
simply  the  individual  opinion  of  Judge  Coalter  and  not  that  of 
the  court,  and  was  not  necessary  to  the  decision  of  the  case.  In 
West  Virginia  it  has  been  held  that  a  judgment  for  the  full  value 
of  property  vests  the  title  to  it  in  the  defendant,  unless  the  prop- 
erty has  been  returned  uninjured  and  unimpaired  in  value,  in 
which  event  the  plaintiff  could  only  recover  damages  for  the  de- 
tention.23 In  this  case  there  was  a  judgment  for  the  full  value 
of  a  horse,  which  it  appears  was  in  possession  of  the  plaintiff's 
agent  at  the  time  the  action  was  brought,  that  he  was  in  no  con- 
dition to  be  removed  on  account  of  wounds  which  he  had  re- 
ceived after  the  defendant  had  taken  him  from  the  plaintiff's 
possession,  and  that  the  plaintiff  had  never  gotten  the  said  horse 
from  his  agent  nor  ever  received  any  pay  for  him ;  and  it  is  not 
clear  that  the  statement  in  the  opinion  that  the  judgment  vested 
title  in  the  defendant  was  necessary  to  the  decision  of  the  case. 

22.  Lovejoy    v.    Murray,    3    Wall.    1;    Miller    v.    Hyde    (Mass.),    42 
Am.    St.    Rep.   424,   and   note;   Cooley  on   Torts    (Students'    Ed.)    437. 

23.  Arnold  v.  Kelly,  4  W.  Va.  642,  647. 


CHAPTER  XXL 

SLANDER  AND  LIBEL. 

§  172.  What  words  are   slanderous   or  libelous. 

§  173.  Parties. 

§  174.  The   declaration. 

§  175.  Malice. 

§  176.  Defences. 

§  177.  Evidence. 

§  178.  Replication. 

§  172.    What  words  are  slanderous  or  libelous. 

Mr.  Justice  Clifford  makes  the  following  classification  of 
words  which  are  slanderous  at  common  law:  1.  "Words  falsely 
spoken  of  a  person  which  impute  to  the  party  the  commission 
of  some  criminal  offense  involving  moral  turpitude,  for  which 
the  party,  if  the  charge  is  true,  may  be  indicted  and  punished. 
2.  Words  falsely  spoken  of  a  person  which  impute  that  the 
party  is  infected  with  some  contagious  disease,  where  if  the 
charge  is  true,  it  would  exclude  the  party  from  society.  3.  De- 
famatory words  falsely  spoken  of  a  person  which  impute  to  the 
party  unfitness  to  perform  the  duties  of  an  office  or  employment 
of  profit,  or  the  want  of  integrity  in  the  discharge  of  the  duties 
of  such  an  office  or  employment.  4.  Defamatory  words  falsely 
spoken  of  a  party  which  prejudice  such  party  in  his  or  her  pro- 
fession or  trade.  5.  Defamatory  words  falsely  spoken  which 
though  not  in  themselves  actionable,  occasion  the  party  special 
damage."1  The  first  four  of  these  classes  are  slanderous  per  se, 
the  other  only  when  special  damage  results. 

In  Virginia  it  is  provided  that  "all  words  which  from  their 
usual  construction  and  common  acceptation  are  construed  as  in- 
sults and  tend  to  violence  and  breach  of  the  peace,  shall  be  ac- 

1.  Cooley  on  Torts  (Students'  Ed.),  §  105;  Pollard  v.  Lyon,  91 
U.  S.  225. 


§§  173-174  THE  DECLARATION  249 

tionable.      No    demurrer    shall    preclude    a  jury    from    passing 
thereon."2 

Libel  is  of  somewhat  wider  extent  than  slander.  All  slander 
when  written  is  libelous,  and  so  is  any  "writing,  print,  picture, 
or  effigy  calculated  to  bring  one  into  hatred,  ridicule,  or  dis- 
grace." 

§   173.    Parties. 

As  words  can  only  be  spoken  by  individuals  separately,  there 
can,  as  a  general  rule,  be  no  joinder  of  defendants  in  slander. 
The  rule  is  otherwise  in  libel,  where  there  may  be  a  joint  publi- 
cation. In  libel,  as  in  other  torts,  all,  or  any  one,  or  any  inter- 
mediate number  may  be  sued.  Slander  of  several  persons  by  the 
same  words  should  generally  be  redressed  by  separate  actions, 
though  if  a  partnership,  as  such,  is  slandered,  all  may  join,  and, 
unless  special  damage  is  done  to  some  one  partner,  it  would 
seem  on  principle  all  should  join;  but  if  a  slander  be  of  a  class 
of  persons  as,  for  example,  all  the  students  of  Washington  and 
Lee  University,  none  can  sue  except  for  special  damage  shown 
to  have  been  done  him.3  It  was  formerly  held  that  a  corporation 
could  not  be  guilty  of  slander,  but  more  recent  cases  hold  cor- 
porations liable  in  damages  for  slander  spoken  by  their  agents 
when  authorized  or  directed  by  the  corporation.  It  is  well  set- 
tled that  they  are  liable  for  libel.4  Insane  persons,  it  is  pre- 
sumed, are  liable  for  the  actual  damage  occasioned,  but  the  au- 
thorities are  not  clear.5 

§   174.     The   declaration. 

Common-law  slander  and  statutory  slander  may  be  united  in 
the  same  declaration  in  different  counts,  but  not  in  the  same 

2.  Code,  §  2897.     This   statute  applies  to  both  spoken   and  written 
words,   and   it  has   been   held  that   no   publication   of  the   words   need 
be    alleged    or   proven    in    an    action    under    the    statute.      Holland    v. 
Batchelder,  84  Va.  664,  55  S.  E.  695. 

3.  13   Encl.   PI.   &   Pr.   29,   and   cases   cited. 

4.  18  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  1059;  Sun  Life  Ass.  Co.  v. 
Bailey,    101   Va.   443,   44   S.    E.    692;    Brown   v.   N.   &   W.    R.   Co..    100 
Va.   619,   42   S.    E.   664. 

5.  Note,   42   Am.    St.   754;    Cooley   on   Torts    (Students'    Ed.)    56. 


250  SLANDER   AND   LIBEL  §    174 

count;6  but  even  if  united  in  the  same  count,  it  would'  simply  pre- 
sent a  case  of  duplicity,  and  objection  on  that  account  cannot 
be  raised  by  demurrer.7  In  declaring  for  either  libel  or  slander, 
the  exact  words  (written  or  spoken)  must  be  set  out  in  the  dec- 
laration in  h<zc  verba.  Not  only  must  the  words  be  given,  but 
the  pleading  must  purport  to  give  them  exact,  though  not  all 
words  charged  need  be  proved.  If  the  words  are  in  a  foreign 
language  they  should  be  pleaded  in  that  language,  followed  by 
a  proper  and  accurate  translation  and  an  averment  (in  slander) 
that  they  were  understood  by  the  hearers.8 

The  important  features  of  the  declaration  are  the  averment, 
the  colloquium,  and  the  innuendo.  If  the  words  do  not  naturally 
and  of  themselves  convey  the  meaning  the  plaintiff  wishes  to 
assign  to  them,  or  are  ambiguous  and  equivocal,  and  require 
explanation  by  reference  to  some  extrinsic  fact  to  show  that 
they  are  actionable,  it  must  be  expressly  shown  that  such  matter 
existed,  and  that  the  slander  related  thereto.9  In  other  words, 
the  existence  of  facts  and  circumstances  which  go  to  show  the 
meaning  of  words  should  be  set  out  so  as  to  show  the  intended 
meaning  of  the  defendant.  .This  is  called  the  averment.  The 
colloquium  is  the  conversation  which  takes  place  in  which  the 
slanderous  words  are  uttered,  and  connects  the  plaintiff  and  the 
extrinsic  facts  with  the  slanderous  words.  It  is  necessary  to 
aver  that  a  conversation  took  place  between  the  defendant  and 
a  third  person,  and  generally  that  this  conversation  was  concern- 
ing the  plaintiff,  and  that  in  the  conversation  the  slanderous 
words  were  spoken  of  and  concerning  the  plaintiff.  The  in- 
nuendo is  intended  merely  to  explain  such  parts  of  the  defama- 
tory words  as  are  equivocal,  or  obscure,  or  need  explanation. 
The  innuendo  can  never  enlarge  the  meaning  of  the  words  used. 
The  innuendo  is  simply  explanatory  of  matter  which  has  already 
been  sufficiently  expressed.  The  meaning  and  application  of 
these  terms  is  made  clearer  by  the  following  illustration  given 
by  Prof.  Minor  from  Barham's  case:  "Barham  brought  an  ac- 
tion against  Nethersal  for  saying  of  him,  'Barham  burnt  my 

6.  Payne  v.  Tancil,   98   Va.  262,   35   S.   E.   725. 

7.  So.   Ry.  Co.  v.  Simmons,  105  Va.  651,  55   S.   E.  459. 

8.  13  Encl.  PI.  &  Pr.  45-47. 

9.  Puterbaugh,   PI.   712. 


§  175  MALICE  251 

barn  (innuendo  a  barn  with  corn).'  The  action  was  held  not  to 
lie ;  because  burning  a  barn  unless  it  had  corn  in  it,  was  not  a 
felony.  And  as  was  remarked  by  De  Grey,  Ch.  J.  in  Rex.  v. 
Home,  Cowp.  684,  the  plaintiff  cannot  by  way  of  innuendo,  say 
meaning  'his  barn  full  of  corn'  because  that  is  not  an  explana- 
tion of  what  was  said  before,  but  an  addition  to  it.  But  if  in  the 
introduction  the  declaration  had  averred  that  the  defendant  had 
a  barn  full  of  corn,  and  that  in  a  discourse  about  the  barn  (a 
colloquium},  the  defendant  had  spoken  the  words  charged  in  the 
libel  of  the  plaintiff,  an  innuendo  of  its  being  the  barn  full  of 
corn  would  have  been  good;  for  by  coupling  the  innuendo  with 
the  introductory  averment  'his  barn  full  of  corn/  it  would  have 
been  complete.  Here  the  extrinsic  fact  that  the  defendant  had 
a  barn  full  of  corn,  is  the  averment.  The  allegation  that  the 
words  were  uttered  in  a  conversation  about  the  barn,  is  the  collo- 
quium; and  the  explanation  given  to  the  words  thus  spoken,  is 
the  innuendo."10 

§   175.    Malice. 

It  is  generally  stated  that  malice  in  both  slander  and  libel  must 
be  alleged  and  proved,  and  no  doubt  the  allegation  is  necessary, 
but  it  must  be  understood,  at  least  so  far  as  the  proof  is  concerned 
that  malice  is  not  used  in  its  common  acceptation,  but  rather  in 
the  sense  of  legal  malice  which  means  a  wrongful  act  done  in- 
tentionally without  just  cause  or  excuse.  A  party  who  thought- 
lessly repeats  a  slander  is  liable  for  it,  and  so  a  newspaper  pub- 
lisher who  copies  an  article  from  another  paper  may  be  abso- 
lutely devoid  of  malice,  and  yet  in  each  case  the  party  is  guilty 
of  legal  malice.  The  absence  of  actual  malice  in  its  common  ac- 
ceptation in  either  case  will  not  defeat  the  action,  though  it  may 
prevent  exemplary  damages.11  If  the  words  were  spoken  or 
written  under  circumstances  which  render  the  communication 
privileged,  then  the  burden  of  proving  malice  is  upon  the  plain- 
tiff. In  such  case  malice  will  not  be  presumed  from  the  mere 
speaking  of  the  words,  but  must  be  otherwise  shown.  If  it  is 

10.  4   Min.   Inst.   462. 

11.  Cooley    on    Torts    (Students'    Ed.)    223;    Dillard    v.    Collins,    25 
Gratt.   343. 


252  SLANDER   AND   LIBEL  §    176 

otherwise  shown,  the  words  are  still  actionable,  otherwise  not. 
The  effect  of  establishing  the  privilege  is  simply  to  change  the 
burden  of  proof.12  Express  malice,  that  is,  actual  malice,  must 
be  shown  in  two  cases :  ( 1 )  To  entitle  the  person  defamed  to- 
recover  punitive  or  exemplary  damages:  (2)  To  repel  the  infer- 
ence that  would  arise  from  a  qualified  privilege.13 

§    176.   Defences. 

The  defendant  may,  as  to  common-law  slander,  demur  to  the 
declaration  on  the  ground  that  it  does  not  state  a  case.  If  the 
words  be  declared  upon  merely  as  insulting  under  the  Virginia 
statute,  then  it  is  expressly  provided  that  no  demurrer  shall  pre- 
clude the  jury  from  passing  thereon.14  The  language  of  the 
statute  is  broad  enough  to  cover  a  demurrer  to  the  declaration 
as  well  as  to  the  evidence,  but  the  statute  applies  only  to  insult- 
ing words,  and  not  to  common-law  slander,  and  as  to  the  lat- 
ter, a  demurrer  may  still  be  filed.  Hence  it  is  necessary  to  aver 
in  the  declaration  that  you  sue  for  the  insult  under  the  statute. 
The  same  words  may  be  slanderous  at  common  law,  and  also  in- 
sulting under  the  statute,  but  a  declaration  will  not  be  held  to 
have  been  founded  upon  the  statute  unless  there  is  something  on 
the  face  of  it  to  show  that  the  plaintiff  intended  to  base  his  ac- 
tion on  the  statute.15  While  it  is  provided,  as  stated  above,  that 
no  demurrer  shall  preclude  a  jury  from  passing  on  the  words, 
still  this  statute  was  enacted  for  the  benefit  of  plaintiffs,  and' 
if  they  choose  to  waive  it  they  may  do  so;  hence  if  the  defendant 
demurs  to  the  evidence  in  an  action  for  slander  or  libel,  and  the 
plaintiff  joins  in  the  demurrer  without  objection,  the  case  will 
be  treated  as  other  cases  of  demurrer  to  the  evidence,  and  the 
plaintiff  held  to  have  waived  the  benefit  of  the  statute  enacted 
for  his  benefit.10 

The  defence  may  be  made  either  by  pleading  the  general  is- 
sue, or  by  special  pleas.  The  most  usual  of  the  special  pleas  is  a 
plea  of  justification.  The  general  issue  is  "not  guilty,"  and  un- 

12.  Dillard  r.  Collins,  supra. 

13.  18  Am.   &   Eng.   Encl.   Law    (2nd   Ed.)   1001,   1002. 

14.  Code,    §    2897. 

15.  Hogan   v.   Wilmoth,   16   Gratt.   80,   88,   89. 

16.  Brown  v.  N.  &  W.  Ry.  Co.,  100  Va.  619,  624,  42  S.  E.  664. 


§    176  DEFENCES  253 

der  it  the  defendant  may  adduce  evidence  to  disprove  any  of  the 
material  allegations  of  the  declaration,  including  special  dam- 
ages. He  may  also  show  that  the  words  were  spoken  in  good 
faith  and  without  malice,  but  he  cannot  show  the  truth  of  the 
words.  This  fact  must  be  specially  pleaded.17  The  defendant 
may  also  show  the  bad  general  character  of  the  plaintiff  on  the 
subject  involved  in  the  litigation  in  mitigation  of  damages.18 
Neither  side  is  permitted  to  show  the  good  or  bad  character  of 
the  defendant,  as  that  would  be  immaterial.  The  defendant,  un- 
der the  plea  of  the  general  issue,  may  also  show  that  the  words 
were  spoken  upon  a  privileged  occasion.  It  is  said  that  confi- 
dential or  privileged  communications  are  of  four  classes :  ( 1 ) 
Where  the  author  or  publisher  of  the  slander  acted  in  the  bona 
fide  discharge  of  a  public  or  private  duty,  legal  or  moral,  or 
in  the  prosecution  of  his  own  rights  or  interests;  (2)  anything 
said  or  written  by  a  master  in  giving  the  character  of  a  servant 
who  has  been  in  his  employment:  (3)  words  used  in  the 
course  of  a  legal  or  judicial  proceeding,  however  hard  they  may 
bear  upon  the  party  of  whom  they  are  used ;  (4)  publications 
duly  made  in  the  ordinary  mode  of  parliamentary  proceedings.19 
In  the  first  'three  classes  the  words  must  be  used  in  good  faith, 
and  be  relevant  and  pertinent  to  the  matter  under  considera- 
tion.20 Words  spoken  in  the  presence  of  a  mayor  of  a  town 
with  reference  to  the  inefficiency  of  a  policeman  in  the  town  are 
privileged  and  are  not  actionable  unless  shown  to  have  been 
spoken  with  a  malicious  purpose.  The  conduct  of  public  officers 
is  open  to  public  criticism,  and  it  is  the  right  and  duty  of  a  citizen 
to  make  complaint  of  any  misconduct  on  the  part  of  officials  to 
those  charged  with  supervision  over  them ;  it  is  also  the  right 
and  privilege  of  a  citizen  to  discuss  the  misconduct  of  such  of- 
ficers if  taxpayers  in  the  town  in  which  they  live.21  As  already 
pointed  out,  the  only  effect  of  showing  that  a  communication  is 

17.  6    Rob.   Pr.   864,   874,   885. 

18.  McNutt   v.   Young,   8    Leigh    542;    Dillard   v.   Collins,    25    Gratt. 
343. 

19.  Dillard   t1.    Collins,   supra. 

20.  5  Va.  Law   Reg.  1. 

21.  Tyree  v.  Harrison,  100  Va.  540,  42  S.  E.  295;  Gatewood  v.  Gar- 
rett,   106   Va.   552,   56   S.   E.   335. 


254  SLANDER   AND   LIBEL  §    177 

privileged  is  to  change  the  burden  of  proof,  and  throw  upon  the 
plaintiff  the  necessity  of  showing  malice. 

The  defendant  may  also  by  special  plea  justify  by  alleging  and 
proving  the  truth  of  the  words  spoken.  This  is  specially  pro- 
vided for  in  Virginia  by  statute.22  While  the  statute  says  that 
the  truth  may  be  shown  in  any  action  for  defamation,  there  are 
some  exceptions.  The  defendant  will  not  be  allowed  to  gratify 
his  malice  and  aggravate  his  outrage  by  proving  the  truth  of 
words  which  have  no  tendency  to  show  that  there  was  anything 
in  the  character  or  conduct  of  the  plaintiff  worthy  of  blame  or 
reproach,  and  it  would  seem  that  the  truth  may  not  be  shown  in 
justification  if  it  imputes  no  fault  or  misconduct  to  the  party  of 
whom  the  words  were  spoken.23 

§   177.    Evidence. 

Like  slanderous  words,  whether  spoken  before  or  after  those 
charged,  may  be  shown  to  affect  the  measure  of  damages  after 
the  words  laid  have  been  proved,  but  not  before.24  If  like  slan- 
derous words  are  proved,  the  defendant  will  be  allowed  to  show 
their  truth  in  mitigation,  as  he  had  no  opportunity  of  pleading 
to  them.25  The  time  and  place  of  speaking  are  generally  imma- 
terial, and  one  place  may  be  alleged  and  another  proved.26  The 
words  charged,  or  some  of  them,  must  be  proved.  The  words 
must  be  at  least  substantially  the  same.  Words  equivalent  or 
of  similar  import  are  not  sufficient.27  As  hereinbefore  pointed 

22.  Section  3375  of  the  Code  is  as  follows:    "In  any  action  for  def- 
amation,   the    defendant    may    justify    by    alleging    and    proving    that 
the  words  spoken  or  written  were  true,  and   (after  notice  in  writing 
of  his   intention   to   do   so,   given   to   the   plaintiff  at  the   time   of,   or 
for    pleading   to    such    action),    may   give    in    evidence,    in    mitigation 
of  damages,  that  he  made  or  offered  an  apology  to  the  plaintiff  for 
such  defamation  before  the  commencement  of  the  action,  or  as  soon 
afterwards  as  he  had  an  opportunity  of  doing  so,  in  case  the  action 
shall    have    been    commenced    before    there    was    an    opportunity    of 
making  or  offering  such  apology. 

23.  Hogan   v.    Wilmoth,   16    Gratt.   80,   88,   89. 

24.  Hansbrough   v.    Stinnett,    25    Gratt.    495. 

25.  6    Rob.    Pr.    873. 

26.  16   Encl.   PI.   &   Pr.   60. 

27.  16   Encl.   PI.   &   Pr.   63. 


§  178  REPLICATION  255 

out,  the  defendant  may  prove  the  bad  general  character  of  the 
plaintiff  in  mitigation  of  damages,  as  a  person  of  bad  reputation 
is  not  entitled  to  the  same  measure  of  damages  as  one  whose 
character  is  unblemished.  In  Virginia,  the  plaintiff  also  may 
show  his  general  good  character  before  any  evidence  is  offered 
by  the  defendant  on  the  subject.28  Expressions  of  regret  after 
the  defamatory  words  were  spoken,  and  especially  after  suit 
brought,  are  not  admissible  in  evidence  in  mitigation  of  dam- 
ages.29 But  the  fact  that  an  apology  was  made  or  offered  as 
soon  as  the  defendant  had  an  opportunity  to  do  so  is  allowed 
to  be  shown  under  statute  in  Virginia  in  mitigation  of  damages.30 

§   178.    Replication. 

The  general  replication  de  injuria  is  a  proper  replication  to  a 
plea  of  justification  in  actions  for  oral  and  written  slander.31 

28.  Adams   v.    Lawson,    17    Gratt.    250. 

29.  McAlexander   v.    Harris,    6    Munf.   465. 

30.  Code,    §    3375. 

31.  1  Chitty  PI.  590;  Puterbaugh  PI.  728. 


CHAPTER  XXII. 

RULE  DAYS  AND  OFFICE  JUDGMENTS.1 

§  179.  Nature  of  rules. 

§  180.  Object  and  purpose   of  rule   days. 

Theoretically. 

Practically. 

§  181.  Proceedings    at   rules. 
§  182.  Rules  in   federal   courts. 
§  183.  Dilatory  pleas   and   time  of  filing. 
§  184.  Powers   of  court  over  proceedings   at  rules. 
§  185.  Setting  aside  office  judgment. 

Judgment  on  an  issue   of  fact  made  by  a   dilatory  plea. 

§   179.    Nature  of  rules. 

Rules  are  orders  made  by  clerks  of  courts  of  record  on 
days  appointed  by  law  (called  rule  days),  for  the  purpose  of 

1.  The  following  sections  of  the  Code  bear  particularly  upon  pro- 
ceedings at  rules:  Sec.  3236.  "In  the  clerk's  office  of  every  circuit 
and  corporation  court,  and  of  the  chancery  court  of  the  city  of 
Richmond,  rules  shall  be  held  on  the  first  and  third  Mondays  of 
every  month,  except  'that  when  the  term  of  a  circuit  court,  or  of 
.the  chancery  court  of  the  city  of  Richmond,  or  the  term  of  a  cor- 
poration court  designated  for  the  trial  of  civil  cases  in  which  juries 
are  required,  happens  to  commence  on  the  first  or  third  Monday 
in  a  month,  or  on  either  of  the  two  following  days,  the  rules  which 
would  otherwise  have  been  held  on  the  first  or  third  Monday,  as  the 
case  may  be,  shall  be  held  on  the  Monday  of  the  preceding  week. 
The  rules  shall  continue  three  days." 

Sec.  3237.  "There  shall  be  a  docket  of  the  cases  at  rules,  wherein 
the  rules  shall  be  entered;  and  the  books  in  which  rules  and  orders 
are  entered,  in  chancery  cases,  shall  be  separate  from  those  in  which 
rules  and  orders  are  entered  in  other  cases." 

Sec.  3238.  "When  there  is  no  clerk  to  take  a  rule  in  a  case,  it 
•shall  stand  continued  until  the  next  rule  day  after  there  is  a  clerk." 

Sec.  3239.  "The  rules  may  be  to  declare,  plead,  reply,  rejoin,  or 
for  other  proceedings;  they  shall  be  given  from  one  rules  to  the 
next  rules." 

Sec.  3240.  "A  defendant  may  appear  at  the  rule  day  at  which  the 
process  against  him  is  returnable,  or,  if  it  be  returnable  in  term,  at 
the  first  rule  day  after  the  return  day,  and,  if  ihe  declaration  or  bill 


§    179  NATURE   OF   RULES  257 

maturing  cases  for  hearing.  They  are  in  effect  orders  of  the 
court  in  which  the  case  is  pending,  as  they  are  subject  to 
the  control  of  the  court  at.  the  next  succeeding  term,  which 
may  reinstate  a  case  discontinued,  set  aside  any  of  the  pro- 
ceedings at  the  rules,  correct  mistakes  therein,  and  make  sucfc 
orders  therein  as  may  appear  to  be  proper.2  At  common  law 

be  not  then  filed,  may  give  a  rule  for  the  plaintiff  to  file  the  same. 
If  the  plaintiff  fail  to  do  this  at  the  succeeding  rule  day,  or  shall, 
at  any  time  after  the  defendant's  appearance,  fail  to  prosecute  his 
suit,  he  shall  be  non-suited,  and  pay  to  the'  defendant,  besides  his 
costs,  five  dollars." 

Sec.  3241.  "If  one  month  elapse  after  the  process  is  returned  ex- 
ecuted as  to  any  one  or  more  of  the  defendants,  without  the  dec- 
laration or  bill  being  filed,  the  clerk  shall  enter  the  suit  dismissed, 
although  none  of  the  defendants  have  appeared." 

Sec.  3242.  "When  a  summons  to  answer  an  action  or  a  bill  is 
against  a  defendant  whom  the  officer  (receiving  it)  knows  not  to 
reside  in  his  county  or  corporation,  he  shall,  unless  he  finds  him 
therein  before  the  return  day,  return  him  a  non-resident;  where- 
upon, if  the  court  from  which  such  process  issued  have  jurisdiction 
of  the  case  only  on  the  ground  of  such  defendant's  residence  in 
such  county  or  corporation,  the  suit  shall  abate  as  to  him." 

Sec.  3258.  "No  plea  in  abatement  for  a  misnomer  shall  be  allowed 
in  any  action,  but  in  a  case  wherein,  but  for  this  section,  a  mis- 
nomer would  have  been  pleadable  in  abatement,  the  declaration  may, 
on  the  defendant's  motion,  and  on  affidavit  of  the  right  name,  be 
amended  by  inserting  the  right  name." 

Sec.  3258a.  "That  whenever  it  shall  appear  in  any  action  at  law  or 
suit  in  equity  heretofore  or  hereafter  instituted  by  the  pleadings  or 
otherwise  that  there  has  been  a  misjoinder  of  parties,  plaintiff  or 
defendant,  the  court  may  order  the  action  or  suit  to  abate  as  to 
any  party  improperly  joined  and  to  proceed  by  or  against  the  oth- 
ers as  if  such  misjoinder  had  not  been  made,  and  the  court  may 
make  such  provision  as  to  costs  and  continuances  as  may  be  just." 

Sec.  3259.  "In  other  cases,  a  defendant,  on  whom  the  process 
summoning  him  to  answer  appears  to  have  been  served,  shall  not 
take  advantage  of  any  defect  in  the  writ  or  return,  or  any  variance 
in  the  writ  from  the  declaration,  unless  the  same  be  pleaded  in 
abatement.  And  in  every  such  case  the  court  may  permit  the  writ 
or  declaration  to  be  amended  so  as  to  correct  the  variance  and  per- 
mit the  return  to  be  amended  upon  such  terms  as  shall  seem  to  it 
just." 

2.  Wakeford  v.  Trinkle,  90  Va.  227,  231,  17  S.   E.  873. 

—17 


258  RULE   DAYS   AND   OFFICE   JUDGMENTS  §    180 

there  were  no  such  things  as  rules  or  rule  days,  but  the  pro- 
ceedings were  for  the  most  part  oral  altercations  at  the  bar 
of  the  court  until  issues  were  reached.  Probably,  at  a  later 
day,  time  was  given  from  one  court  to  another  to  file  answers 
to  the  antecedent  pleadings,  and,  in  more  recent  times,  the 
pleadings  are  written  out  and  delivered  to  the  opposing  party 
or  his  counsel,  until  the  issue  is  reached ;  but  rules  are  wholly 
a  creature  of  the  statute,  and  hence  the  statute  is  to  be  sub- 
stantially, if  not  literally,  complied  with.  These  rules  in  Virginia 
are  held  on  the  first  and  third  Monday  of  each  month,  and  the 
two  succeeding  days,  unless  within  some  of  the  exceptions 
mentioned  in  the  statute.  It  is  now  expressly  provided  that 
the  rules  shall  continue  three  days,  so  that  the  question  involved 
in  Botts  v.  Pollard,  11  Leigh  433,  is  now  regulated  by  stat- 
ute.3 In  every  civil  case  in  Virginia  in  which  the  common-law 
form  of  action  is  adopted,  it  is  manifest  that  rules  must  be 
held,  and  when  the  proceedings  at  rules  have  terminated,  then, 
and  not  till  then,  the  clerk  must  put  the  case  on  the  court 
docket.4 

§   180.    Object  and  purpose  of  rule  days. 

Theoretically,  the  object  and  purpose  of  rule  days  is  to  compel 

3.  The    statute    then    provided    that    rules    should    be    held    in    the 
clerk's    office    "on    the    first    Monday    of    every    month,    and    may    be 
continued  from  day  to  day  not  exceeding  six  days."     1   Rev.   Code, 
ch.  128,  §  69.     The  clerk  closed  the  rules,  so  far  as  affected  the  re- 
ception  of   pleas,   on   the   first   day  of  the   rules,   and   refused   to   re- 
ceive a  plea  at  a  later  day,  and  this  was  held  to  be  error. 

4.  Code,  §§  3236,  3378. 

Sec.  3260.  "Where  the  declaration  or  bill  shows  on  its  face 
proper  matter  for  the  jurisdiction  of  the  court  no  exception  for  the 
want  of  such  jurisdiction  shall  be  allowed  unless  it  be  taken  by 
plea  in  abatement.  No  such  plea  or  any  other  plea  in  abatement 
shall  be  received  after  the  defendant  has  demurred,  pleaded  in  bar, 
or  answered  to  the  declaration  or  bill,  •  nor  after  a  decree  nisi  or 
conditional  judgment  at  rules." 

Sec.  3261.  "No  plea  in  abatement,  for  the  non-joinder  of  any  per- 
son as  a  co-defendant,  shall  be  allowed  in  any  action,  unless  it  be 
stated  in  the  plea  that  such  person  is  a  resident  of  this  state,  and 
unless  the  place  of  residence  of  such  person  be  stated  with  conven- 
ient certainty  in  an  affidavit  verifying  the  plea." 


§    181  PROCEEDINGS   AT   RULES  259 

defendants  not  only  to  bring  forward  their  dilatory  pleadings  at 
an  early  stage,  but  also  to  mature  the  case  for  hearing  on  its 
merits,  so  that  the  parties  may  be  informed  before  the  court 
meets  what  issues  are  to  be  tried.  Practically,  the  only  effect 
of  rule  days  is  to  compel  defendants  to  bring  forward  their 
dilatory  pleas  at  an  early  stage,  and  also  to  enable  them  to 
force  a  trial  on  the  merits  at  the  next  succeeding  term,  or 
compel  the  plaintiff  to  show  cause  for  a- continuance.  As  will 
be  seen  later,  dilatory  pleas  cannot  be  filed  in  a  regular  action 
except  at  rules,  and  hence  the  defendant  is  compelled  at  an 
early  stage  to  file  his  dilatory  pleas.  But  an  office  judgment 
against  a  defendant  is  not  final,  and  the  penalty  imposed  for 
suffering  an  office  judgment  is  so  slight  that  defendants,  as 
a  rule,  pay  no  attention  whatever  to  the  proceedings  at  rules. 
If  they  make  up  the  issue  at  rules,  they  thereby  inform  the 
plaintiff  in  advance  of  the  term  of  court  what  their  defence 
is,  and  this  is  generally  not  considered  desirable,  so  that  it  is 
rare  that  a  plea  in  bar  is  ever  filed  at  rules.  If,  however, 
a  defendant  is  anxious  for  trial,  he  will  make  up  the  issues 
at  rules,  so  that  when  the  case  is  called  on  the  docket  the 
plaintiff  will  not  be  entitled  to  a  continuance  as  a  matter  of 
right,  but,  having  been  advised  before  hand  of  what  the  issue 
would  be,  will  be  compelled  to  go  to  trial  or  to  show  cause  for 
a  continuance,  or  else  submit  to  a  non-suit.  If  the  defendant 
waits  until  the  term  of  the  court  to  file  his  pleas  in  bar,  this 
generally  gives  the  plaintiff  a  right  to  a  continuance  as  a  matter 
of  right;  but,  as  stated,  the  rule  is  otherwise  where  the  issue? 
are  made  up  at  rules.  Practically,  then,  the  only  effect  of  the 
statute  with  reference  to  proceedings  at  rules  is  to  compel  the 
filing  of  dilatory  pleas  at  an  early  stage  and  to  enable  the 
defendant  to  force  the  plaintiff  to  a  trial  on  the  merits,  or 
else  to  show  cause  for  a  continuance  when  his  case  is  called 
on  the  docket. 

§   181.    Proceedings  at  rules. 

Rules   in  Virginia  are  required   to  be  held   for  three   days.5 
For   most    purposes,    they    are    regarded    as    but    one    day,    but 

5.  Code,    §    3236. 


260  RULE   DAYS   AND   OFFICE   JUDGMENTS  §    181 

for  some  purposes  there  is  a  severance.  All  process  which  is 
returnable  to  rules  is  returnable  to  the  first  day  of  the -rules, 
but  may  be  executed  on  or  before  the  first  day,  but  not  after.6 
The  sheriff  may  make  his  return  on  any  one  of  the  three  days, 
but  cannot  serve  process  later  than  the  first.  If  the  process 
is  returned  not  executed,  an  alias  or  other  proper  process  may 
be  issued.7  If  the  process  is  returned  executed,  it  is  the  duty 
of  the  plaintiff  to  file  his  declaration  at  the  return  day  of  the 
process,  and  if  he  fails  to  do  so,  the  defendant  may  give 
him  a  rule  to  declare,  and  then  unless  the  declaration  is  filed 
at  the  next  succeeding  rules,  he  will  be  non-suited,  and  required 
to  pay  to  the  defendant  $5  damages,  and  the  costs.8  If  one 
month  elapses  after  the  process  is  returned  executed  as  to  any 
one  or  more  of  the  defendants  without  the  declaration  being  filed, 
it  is  made  the  ex  officlo  duty  of  the  clerk  to  dismiss  the  action, 
although  none  of  the  defendants  have  appeared,  subject,  how- 
ever, to  be  reinstated  at  the  next  term  for  good  cause  shown.9 
If  process  be  returned  executed  and  the  declaration  be  filed 
in  time  the  defendant  may : 

(1)  Stay  away  altogether  and  pay  no  attention  to  the  rules  in 
which  event  there  is  entered  against  him  what  is  called  the  common 
order  (because  it  is  the  usual  order),  or  conditional  judgment, 
which  is  but  another  name  for  the  same  thing,  and  called  a  condi- 
tional judgment  because  it  threatens  the  defendant  with  a  judg- 
ment against  him  at  the  next  rules  if  he  fails  to  appear  and 
plead.  If  a  defendant  fails  to  make  any  appearance  at  all 
at  the  next  or  second  rules,  a  judgment  is  entered  against  him 
in  the  office,  with  or  without  a  writ  of  enquiry,  as  necessity 
may  require.  Having  failed  either  to  appear  or  plead  at  the 
first  rules,  all  dilatory  pleas  are  cut  off  but  at  the  second  rules 
he  may,  if  he  elect,  plead  to  the  issue;  or, 

6.  Code,   §   3220. 

7.  Code,  §  3221.     If  the  process  is  not  returned  on  the  return  day 
thereof,   it   is   made   the   ex  officio   duty   of  the   clerk  to   issue   a   rule 
against  the  officer  to  whom  the  process  was   directed  returnable  to 
the  first  day  of  the  next  term  of  the  court  to  appear  and  show  cause 
why  he  shall  not  be  fined  for  his  said  default.     Code,  §  900. 

8.  Code,  §  3240. 

9.  Wickham  v.   Green,  111  Va.  199,  68   S.   E.  259. 


§    181  PROCEEDINGS   AT   R.ULES  261 

(2)  At  the   rules  at  which  the  declaration  is  filed   he   may 
simply  enter  an  appearance,  but  file  no  plea  whatever.     When 
this  is  done,  there   is  given  him  a   rule  to  plead  at  the   next 
rules,   and  if  he   fails  to  plead  at  the  next  rules   judgment  is 
given  against  him  by  a  nil  dicit,   i.   e.,  he  appeared  and  said 
nothing.    If,   however,   he   elects   to   plead   at   the   second   rules 
he  may  plead  either  a  dilatory  plea,  or  a  plea  to  the  merits. 
The  statute  allows  dilatory  pleas  after  a  rule  to  plead,  but  not 
after   demurrer,   plea   in  bar,   or   conditional  judgment.     If  he 
pleads,  issue  is  made   up  on  the  plea  and  the  case  is  put  on 
the  issue  docket  of  the  court;  or, 

(3)  He  may  appear  by  counsel  who  says  that  he  is  not  in- 
formed of  any  material  defence  the  defendant    has    to    make. 
When  this  is  done  judgment  is  given  against  the  defendant  by 
non  sum  informatiis.10     This  is   a  very  rare  occurrence,   as  a 
client  can  get  no  benefit  from  it,  and  would  simply  be  at  the 
expense  of  employing  an  attorney  for  nothing;  or, 

(4)  He  may  in  any  case,  whether  an  action  was  previously 
pending  or  not,  and  although  the  case  be  on  the  court  docket 
confess  judgment   for  the  amount  of  the  plaintiff's  demand.11 
This  may  be  done  by  the  defendant  either  in  person  or  by  an 
attorney  in  fact. 

Rules  are  supposed  to  be  taken  on  rule  days,  and  while  the 
parties  may  file  their  pleadings  on  any  one  of  the  three  days 
they  must  file  them  early  enough  for  the  clerk  to  take  the  rules, 
presumably  during  business  hours,  else  they  will  be  too  late.12 
The  proceedings  at  the  rules  are  such  that  every  regular  action 
at  law  must  result  in  an  order  at  the  rules  in  awarding  either 
(1)  a  writ  of  enquiry,  or  ('2)  an  issue,  or  (3)  an  office  judg- 
ment, and  the  court  docket  is  arranged  accordingly.  If  the 
action  be  one  that  sounds  in  damages,  or  if  any  damages  have 
to  be  assessed,  and  the  case  is  not  within  any  of  the  exceptions 
hereinafter  noted,  then  the  final  order  at  the  rules  is  that  a 
7i-nV  of  enquirv  be  ordered.  If  the  parties  plead  to  issue  at 
the  rules,  the  case  is  simply  put  on  the  issue  docket.  If  there 

10.  4   Min.    Inst.    956. 

11.  Code,    §    3283. 

12.  Botts    z/.    Pollard,    11    Leigh    433. 


262  RULE   DAYS   AND   OFFICE   JUDGMENTS  §    181 

is  a  default  of  appearance,  or  even  if  there  has  been  an  ap- 
pearance and  subsequently  a  judgment  by  a  nil  dicit  at  the 
rules,  and,  in  either  event,  the  case  is  one  in  which  the  statute 
declares  that  no  writ  of  enquiry  shall  be  necessary,  then  the 
case  is  put  on  the  office  judgment  docket.  But  no  judgment 
entered  in  the  clerk's  office  is  a  final  judgment  except  a  judg- 
ment by  confession,  which  is  also  subject  to  the  qualification 
stated  in  the  statute.13  "Office  judgments,"  as  hereinbefore 
defined,  automatically  become  final  unless  set  aside  in  the  man- 
ner provided  by  statute,  but  are  not  per  se  final.  On  the  above 
arrangement  of  the  court  docket,  writs  of  enquiry  come  first, 
then  issues,  then  "office  judgments."  Writs  of  enquiry  being 
entered  in  cases  where  there  has  been  no  appearance  for  the 
defendant,  take  but  a  short  while  to  dispose  of,  and  if  neither 
party  requires  a  jury,  the  writ  may  be  executed  and  final  judg- 
ment entered  by  the  court.  There  can  be  no  final  disposition 
of  the  case  until  the  writ  has  been  executed,  and  it  will  stand 
perpetually  on  the  court  docket,  and  be  continued  from  time  to 
time,  until  the  writ  is  executed.  If,  when  the  case  is  called  on 
the  writ  of  enquiry  docket,  a  plea  is  filed,  the  issue  is  made 
up  on  the  plea,  and  the  case  is  then  put  on  the  issue  docket, 
and  usually  either  a  day  is  set  for  the  trial  during  that  term, 
or  the  case  is  continued  until  the  next  term.  The  next  portion 
of  the  docket,  called  the  issue  docket,  comprises  those  cases  in 
which  issues  have  been  made  up,  either  at  rules  or  in  term  time, 
and  which  require  the  presence  of  witnesses,  jurors,  counsel, 
etc.,  and  constitutes  the  principal  business  of  the  court.  Of 
course,  a  case  standing  on  the  issue  docket  remains  there  until 
the  issues  are  disposed  of.14  The  next  portion  of  the  docket 

13.  Code,    §    3283. 

14.  When  a  case  stands  upon  the  writ  of  inquiry  docket,   nothing 
remains   to   be   done   except   to   assess   the   damages,   there   being  no 
plea  and  no  issue,  the  jury  should  be  sworn  to  inquire  of  the  dam- 
ages sustained  by  the  plaintiff  by  reason  of  the  matters  and  things 
set    forth    in    the    declaration.      It   is    said    to   be    error    to    swear   the 
jury  to  try  the  issue  as   there  is   no  issue,  but  at  present  the   error 
would    probably    be    regarded    as    harmless.      Upon    this    inquiry    of 
damages,  the  defendant  may  call  witnesses  to  show  matters  in  mit- 
igation of  damages,  but  not  in  bar  of  the  plaintiff's  right  of  action. 
(10  Encl.  PL  &  Pr.  1156-9;  Graves'  Note.s  on  PL   (new)  92,  93.)     The 


§    181  PROCEEDINGS  AT   RULES  263 

is  what  is  known  as  the  "office  judgment"  docket.  This  need 
not  be  called  at  all,  as  the  judgment  entered  in  the  clerk's  office 
becomes  final  automatically  unless  set  aside  by  a  plea  to  the 
issue  as  hereinafter  set  forth.15  An  "office  judgment"  in  this 
connection,  and  in  the  common  acceptation  of  the  term,  means 
a  judgment  by  default  in  the  clerk's  office,  in  a  case  in  which 
there  is  no  order  for  an  enquiry  of  damages.  It  is  necessary, 
therefore,  to  consider  when  an  enquiry  of  damages  shall  be 
ordered. 

The  general  rule  is  that  a  writ  of  enquiry  is  necessary  in  an 
action  which  sounds  in  damages,  or  in  which  any  damages  are 
to  be  assessed.  The  statutory  provisions  in  Virginia  on  the 
subject  are  given  in  the  margin.16  It  will  be  observed  that  the 

question,  however,  as  to  the  rights  of  the  defendant  in  such  a  case 
is  a  purely  academic  one,  and  one  which  seldom  arises  except  by 
oversight.  Pleadings,  as  a  rule,  are  not  required  to  be  sworn  to 
in  Virginia,  and  even  where  the  defendant  does  not  expect  to  con- 
test the  plaintiff's  right  of  recovery,  but  only  the  amount  thereof, 
the  uniform  practice  is  to  enter  a  plea.  There  is  no  prohibition  on 
his  right  to  enter  a  plea,  nor  any  conditions  annexed  thereto,  and 
as  he  runs  no  risk  by  pleading,  and  may  run  some  by  failure  to 
plead,  the  practice  is  as  stated. 

If  a  case  stands  on  the  issue  docket,  the  jury  are  sworn  to  try 
the  issues  joined,  that  is,  to  decide  the  points  in  dispute,  as  fixed 
by  the  pleadings.  The  jury,  however,  has  a  further  duty  imposed 
upon  it,  which  is  to  assess  the  damages.  (McNutt  v.  Young,  8 
Leigh  544).  No  separate  jury  is  ever  called  to  assess  damages 
where  there  is  already  a  jury  to  try  the  issues.  "Where  an  issue 
is  made  by  the  pleadings  and  it  is  tried  by  a  jury,  then  the  jury  at 
the  same  time  that  they  try  the  issue  assess  the  damages,  so  that 
in  such  case  no  writ  of  inquiry  is  necessary.  This  is  the  usual  and 
immemorial  practice."  (Geo.  Campbell  Co.  v.  Geo.  Angus  Co.,  91 
Va.  438,  22  S.  E.  167.) 

15.  Code,   §§   3287,   3288.      See   post,   §   185. 

16.  Sections  3285  and  3286  of  the  Code  are  as  follows:     Sec.  3285. 
"There  need  be  no  such  inquiry  in  any  action  upon  a  bond  or  other 
writing   for   the    payment   of   money,    or   against   the    drawer    or   en- 
dorser of  a  bill  of  exchange  or  negotiable  note,  or  in  an  action  or 
scire  facias  upon  a  judgment  or  recognizance,  or  in  any  action  upon 
an   account,   wherein    the   plaintiff   shall    serve   the    defendant,    at    the 
same   time    and   in   the   same   manner   that   the   process   or   summons 
to  commence  the  suit  or  action  is  served,  with  a  copy   (certified  by 
the  clerk  of  the  court  in  which  the  suit  or  action  is  brought)  of  the 
account   on    which    the    suit    or   action    is    brought,    stating   distinctly 


264  RULE   DAYS    AND    OFFICE    JUDGMENTS  §    181 

Virginia  statute  dispenses  with  the  enquiry  in  any  action  upon 
a  bond  or  other  writing  for  the  payment  of  money,  or  against 
the  drawer  or  endorser  of  a  bill  of  exchange  or  negotiable 
note,  or  in  an  action  or  scire  facias  upon  a  judgment  or  re- 
cognizance, or  in  action  upon  an  account  where  the  plaintiff 
serves  the  defendant  along  with  the  summons  to  commence  the 
suit  with  a  duly  certified  copy  of  the  account  on  which  the 
action  is  brought,  giving  the  information  required  by  the  stat- 
ute; and  that,  in  an  action  of  assumpsit  on  any  contract,  ex- 
press or  implied,  for  the  payment  of  money  (except  where 

the  several  items  of  his  claim,  and  the  aggregate  amount  thereof, 
and  the  time  from  which  he  claims  interest  thereon,  and  the  credits, 
if  any,  to  which  the  defendant  may  be  entitled.  But  this  section 
shall  not  apply  to  any  action  on  an  account  in  which  the  process  is 
served  by  publication." 

Sec.  3286.  "In  an  action  of  assumpsit  on  a  contract,  express  or 
implied,  for  the  payment  of  money  (except  where  the  process  to 
answer  the  action  has  been  served  by  publication),  if  the  plaintiff 
file  with  his  declaration  an  affidavit  made  by  himself  or  his  agent, 
stating  therein,  to  the  best  of  the  affiant's  belief  the  amount  of  the 
plaintiff's  claim,  that  such  amount  is  justly  due,  and  the  time  from 
which  the  plaintiff  claims  interest,  no  plea  in  bar  shall  be  received 
in  the  case,  either  at  rules  or  in  court,  unless  the  defendant  file  with 
his  plea  the  affidavit  of  himself  or  his  agent,  that  the  plaintiff  is  not 
entitled,  as  the  affiant  verily  believes,  to  recover  anything  from  the 
defendant  on  such  claim,  or  stating  a  sum  certain  less  than  that 
set  forth  in  the  affidavit  filed  by  the  plaintiff,  which,  as  the  affiant 
verily  believes,  is  all  that  the  plaintiff  is  entitled  to  recover  from 
the  defendant  on  such  claim.  If  such,  plea  and  affidavit  be  not  filed 
by  the  defendant,  there  shall  be  no  inquiry  of  damages,  but  judg- 
ment shall  be  for  the  plaintiff  for  the  amount  claimed  in  the  affida- 
vit filed  with  his  declaration.  If  such  plea  and  affidavit  be  filed,  and 
the  affidavit  admits  that  the  plaintiff  is  entitled  to  recover  from  the 
defendant  a  sum  certain  less  than  that  stated  in  the  affidavit  filed 
by  the  plaintiff,  judgment  may  be  taken  by  the  plaintiff  for  the 
sum  so  admitted  to  be  due,  and  the  case  be  tried  as  to  the  residue." 

Section  3286  in  large  measure  supersedes  §  3285,  as  assumpsit 
is  generally  the  form  of  action  brought  on  an  account,  but  it  will 
be  observed  that  §  3285  applies  to  any  action  upon  an  account  (which, 
however,  is  not  required  to  be  sworn  to),  while  §  3286  applies  only 
to  assumpsit  on  a  contract,  express  or  implied,  to  pay  money,  but  it 
requires  an  affidavit  as  to  the  amount  and  justice  -of  the  plaintiff's 
claim,  and  the  time  from  which  he  claims  interest. 


§    181  PROCEEDINGS  AT   RULES  265 

the  process  to  answer  the  action  has  been  served  by  a  publi- 
cation) if  the  plaintiff  files  with  his  declaration  an  affidavit 
niade  by  himself,  or  his  agent,  as  to  the  amount  and  justice  of 
the  plaintiff's  claim  and  the  time  from  which  he  claims  interest, 
no  plea  will  be  received  from  the  defendant,  either  at  rules  or 
in  court,  unless  it  be  sworn  to;  so  that  in  this  case  also  there 
would  be  no  enquiry  of  damages.  But  if  a  sworn  plea  is  filed, 
the  issue  will  be  ordered.  It  is  pointed  out  by  Prof.  Graves 
in  his  Notes17  that  before  the  enactment  of  this  statute  the 
writ  of  enquiry  was  necessary  where  a  judgment  was  entered 
in  the  clerk's  office  in  an  action  of  debt  on  a  verbal  promise  to 
pay  a  certain  sum,18  and  in  an  action  of  debt  on  a  bond  with 
collateral  condition,19  and  that  the  first  of  these  cases  has  not 
been  met  by  the  present  statute,  so  that  in  an  action  of  debt 
on  a  verbal  promise  to  pay  a  sum  certain,  a  writ  of  enquiry 
is  still  necessary.  It  would  seem  also  to  be  still  necessary  in 
an  action  of  debt  on  a  bond  with  collateral  condition  (e.  g.,  a 
sheriff's  bond),  as  this  is  not  strictly  a  bond  for  the  payment 
of  money,  but  to  secure  the  performance  of  a  collateral  thing; 
and  this  would  seem  especially  to  be  necessary  in  view  of 
the  provision  of  the  Virginia  statute,  which  requires  the  decla- 
ration in  cases  of  this  kind  to  assign  the  breaches.20  A  writ 
of  enquiry  is  also  necessary  in  an  action  of  ejectment  as  some 
damages,  though  nominal,  are  sought  to  be  recovered.21  Judge 
Moncure  observes  that  the  plaintiff  "is  at  least  entitled  to 
nominal  damages,  and  the  only  mode  of  recovering  nominal 
damages  where  there  is  a  judgment  by  default,  is  by  an  enquiry 
of  damages.  That  a  plaintiff  is  entitled  to  only  nominal  dam- 
ages is  not  of  itself  a  sufficient  reason  why  there  should  not 
be  an  enquiry  of  damages.  No  action  of  debt  sounds  in 
damages ;  and  yet  an  order  for  an  enquiry  of  damages  is  nec- 
essary in  every  action  of  debt  in  which  there  is  an  office  judg- 

17.  Graves'   Notes   on   PI.    (new)    94. 

18.  Hunt  r.    McRae,   6   Munf.   454. 

19.  Ruffin   v.    Call.    2    Wash.    181:    Henderson   v.    Hepburn,    2    Call. 
195. 

20.  Code,   §   3394. 

21.  James    River,    etc.,    Co.    r.    Lee,    16    Gratt.    424;    Smithson    v 
Briggs,  33   Gratt.   180. 


266  RULE   DAYS    AND   OFFICE   JUDGMENTS  §    181 

ment  except  those  enumerated  in  the  Code;  and  it  is  necessary 
even  in  those  cases  if  there  be  any  apparent  uncertainty  as  to 
the  amount  of  the  debt  or  the  credits  applicable  thereto.  The 
function  of  such  an  enquiry  is,  not  only  to  ascertain  the  amount 
of  damages,  but  to  remove  any  uncertainty  which  may  exist  as 
to  the  subject  in  controversy,  or  the  amount  thereof."22 

It  is  important  to  observe  whether  a  case  should  be  put  on  the 
office  judgment  docket  or  the  writ  of  enquiry  docket,  because 
an  "office  judgment,"  as  hereinbefore  pointed  out,  becomes  final 
automatically,  while  a  writ  of  enquiry  never  does,  and  it  is 
necessary  to  have  the  office  judgment  set  aside  before  it  becomes 
final.  The  mistake,  however,  of  the  clerk  in  putting  a  case  in 
the  wrong  place  on  the  docket,  e.  g.,  on  the  writ  of  enquiry 
docket  instead  of  the  office  judgment  docket,  cannot  prejudice 
the  plaintiff,  nor  affect  the  result.  The  question  is  not  where 

22.  James  River,  etc.,  Co.  v.  Lee,  16  Gratt.  424,  432.  On  this  sub- 
ject, Prof.  Graves  makes  the  following  comment  at  p.  95  of  Notes 
on  PI.  (new) : 

"Filing  Writing  Sued  on  in  Clerk's  Office. — The  words  above  in 
italics  refer  to  the  case  of  Rees  v.  Bank,  5  Rand.  (Va.)  326,  where 
it  was  said  (as  quoted  in  James  River,  etc.,  Co.  v.  Lee,  supra,  at  p. 
428) :  'A  final  judgment,  when  no  plea  is  filed,  may  be  rendered  in 
the  office  at  rules,  for  principal  and  interest,  when  the  action  is 
founded  upon  an  instrument  in  writing  for  the  payment  of  an  ascer- 
tained sum  of  money.  But  if  the  plaintiff,  by  any  paper  filed  by 
himself,  shows  that  the  defendant  is  entitled  to  a  credit,  the  judg- 
ment ought  either  to  be  entered  subject  to  such  credit,  or,  if  the 
plaintiff  refuses  to  take  a  judgment  in  that  way,  a  writ  of  inquiry 
should  be  awarded.  In  this  case  if  it  be  doubtful  whether  the  de- 
fendant is  entitled  to  the  credit  endorsed  on  the  (notarial)  protest 
filed  with  the  note,  it  was  sufficient  ptrima  facie  evidence  to  prevent 
a  judgment  being  given  for  the  whole  sum  without  a  writ  of  in- 
quiry.' It  is  probable  that  this  decision  is  the  foundation  of  the 
practice  said  to  prevail  with  some  clerks  of  entering  an  office  judg- 
ment 'with  an  order  for  the  damages  to  be  inquired  into'  (§  3284), 
unless  the  'bond  or  other  writing'  be  filed  with  the  declaration,  as 
non  constat  there  may  not  be  credits  endorsed  thereon;  or,  perhaps, 
the  filing  might  be  required  as  an  assurance  to  the  clerk  that  the 
action  really  is  'upon  a  bond  or  other  writing  for  the  payment  of 
money,'  when  he  is  called  upon  to  decide  whether  the  office  judg- 
ment shall  stand  upon  a  writ  of  inquiry  or  not.  And  see  Va.  Code 
§  3336." 


§    182  RULES  IN  FEDERAL  COURTS  267 

the  clerk  places  the  case  on  the  docket,  but  where  it  should 
have  been  placed,  and  what  the  rights  of  the  parties  are,  and 
although  a  case  is  put  on  the  writ  of  enquiry  docket  if  it  in 
fact  is  a  true  "office  judgment,"  it  becomes  final  on  the  fifteenth 
day  of  the  term,  or  the  adjournment  thereof,  whichever  first 
happens,  and  all  subsequent  proceedings  are  simply  void.23 
In  legal  contemplation,  parties  are  held  at  the  rules  until  the 
issue  is  made  up,  or  other  final  order  at  the  rules  is  entered,  and 
take  knowledge  of  what  is  done  there,  hence  none  of  the  orders 
made  at  the  rules  are  served  upon  the  parties. 

The  statute  makes  no  exception  on  account  of  the  fact  that 
the  court  may  be  in  session  during  the  time  when  rules  should 
otherwise  be  held,  and  consequently  rules  may  be  taken  during 
the  session  of  the  court  as  well  as  in  vacation.24  When  the 
proceedings  at  the  rules  have  been  closed,  as,  for  example,  by 
the  confirmation  of  the  common  order,  the  defendant  is  no 
longer  held  to  be  in  attendance  in  expectation  of  anything 
further  be  done  there,  and  the  clerk  has  no  power  thereafter  to 
correct  any  error  or  irregularity  committed  by  him,  either  in 
confirming  the  common  order,  or  prior  thereto.25 

§   182.    Rules  in  federal  courts. 

In  actions  at  common  law,  rules  are  held  in  the  federal  courts 
on  the  same  days  and  with  like  effect  as  in  the  state  courts, 
and  the  proceedings  are  in  all  respects  similar.  Section  914  of 
the  U.  S.  Revised  Statutes,  commonly  called  the  Conformity 
Act,  declares :  "The  practice,  pleadings,  and  forms  and  modes 
of  proceeding  in  civil  causes,  other-  than  equity  and  admiralty 
causes,  in  the  circuit  and  district  courts,  shall  conform,  as  near 
as  may  be,  to  the  practice,  pleadings,  and  forms  and  modes  of 
proceeding  existing  at  the  time  in  like  causes  in  the  courts  of 
record  of  the  state  within  which  such  circuit  or  district  courts 
are  held,  any  rule  of  court  to  the  contrary  notwithstanding." 

In  equity,  however,   there  is  only  one  rule  day  each  month, 

23.  Price  r.  Marks,  103  Va.  18,  48  S.  E.  499;  Gring  v.  Lake  Drum- 
mond  Co.,  110  Va.  754,   67   S.   E.   360. 

24.  Abney  r.  Ohio  L.   R.  Co.,  45   \V.   Va.  446,  32  S.   E.  256;   1   Rob. 
Pr.   (old)   140. 

25.  Southall  r.   Exchange   Bank,   12   Gratt.  312. 


268  RULE   DAYS   AND   OFFICE   JUDGMENTS  §    183 

and  that  is  the  first  Monday.  Parties  are  required  to  mature 
their  cases  at  rules,  and  if  a  bill  be  taken  for  confessed  at 
rules,  the  order  taking  it  for  confessed  can  only  be  set  aside 
for  cause  shown  and  upon  payment  of  the  costs  of  the  plain- 
tiff up  to  that  time,  or  such  part  thereof  as  the  court  may 
deem  reasonable.26  Attention  is  called  to  the  fact  that  the 
Supreme  Court  of  the  United  States  now  has  under  consid- 
eration a  complete  revision  of  the  equity  rules,  and  that  the 
revised  rules  will  .probably  be  promulgated  in  the  near  future. 

§    183.    Dilatory  pleas  and  time  of  filing. 

All  dilatory  pleas  are  called  pleas  in  abatement  in  Virginia. 
They  are  classified  as  follows : 

Pleas  are  (I)   Dilatory  or  (II)   Peremptory. 
I.    Dilatory  pleas  are  : 

(1)  To  the   jurisdiction. 

(2)  In  suspension. 

(3)  In  abatement  of  the  writ  or  declaration,  or  both. 

1.  Disability    of    plaintiff   or    defendant    to    sue     or 

be  sued. 

2.  Plea  in  abatement  to  declaration. 

1.  Variance  between  writ  and   declaration. 

2.  Defect  in  declaration. 

(a)  Matter  apparent,  e.  g.,  return  day  too 
far  off,  etc. 

(b)  Matter  dehors  the  writ. 

(1)  Misnomer. 

(2)  Non-joinder  of  co-contractor. 

(3)  Pendency    of    another    action    for 

the   same   cause.27 
II.  Peremptory  Pleas : 

1.  Traverse. 

(a)  Common  traverse,   in   the  terms   of  the   allega- 
tion traversed. 

(b)  Special  traverse. 

(c)  General   traverse,   or  the  general  issue. 

2.  Confession  and  avoidance. 

26.  Equity   Rule   XIX. 

27.  4  Min.  Inst.  750,  et  seq. 


§  183 


DILATORY  PLEAS  AND  TIME  OF  FILING 


269 


Both  in  Virginia  and  elsewhere  all  pleas  must  be  pleaded  in 
due  order,  which  due  order  is  given  above,  and  failure  to  plead 
in  that  order  is  a  waiver  of  those  that  should  have  been 
previously  pleaded.28  All  pleas  in  abatement  must  be  sworn 
to.29  In  this  connection  it  may  be  noted  that  the  following 
other  pleas  must  also  be  verified  by  affidavit:  Plea  of  non  est 
factum,30  pleas  denying  an  endorsement,  assignment,  or  the  mak- 
ing of  any  other  writing,  where  the  same  has  been  alleged 
in  the  pleadings;31  pleas  denying  partnership  or  incorporation, 
where  parties  sue  or  are  sued  as  partners  or  as  a  corporation;32 
and  the  plea  of  statutory  recoupment.33  In  an  action  of  assumpsit 
on  a  contract  for  the  payment  of  money  where  the  plaintiff  swears 
to  the  amount  and  justice  of  his  claim,  etc.,  the  defendant's 
plea  must  also  be  sworn  to.34 

Dilatory  pleas  must  be  good  in  form  as  well  as  in  substance 
as  they  are  not  favored,  and  the  strict  technicality  of  the  com- 
mon law  still  prevails  as  to  the  form  of  dilatory  pleas.  Special 
demurrers  have  not  been  abolished  in  Virginia  as  to  pleas  in 
abatement.35  The  chief  use  of  a  plea  to  the  jurisdiction  in 
Virginia  arises  out  of  actions  brought  in  the  wrong  county 
or  corporation.  Jurisdiction  of  the  subject  matter  is  fixed  by 
statute,  and  objection  on  that  account  may  be  raised,  not  only 
by  a  plea  in  abatement,  but  by  motion,  or  in  almost  any  other 
way.  Pleas  to  the  jurisdiction  must  be  in  proper  person,  and 
not  by  attorney,  because  the  appointment  of  an  attorney  of 
the  court  is  said  to  admit  jurisdiction,  but  other  pleas  in  abate- 
ment may  be  by  attorney  because  the  jurisdiction  of  the  court 
is  not  questioned.36  It  is  believed  that  a  corporation  aggregate, 
which  is  incapable  of  personal  appearance,  must  purport  to 

28.  Stephen,  §  97. 

29.  Code,  §  3278. 

30.  Code,   §   3278. 

31.  Code,  §  3279. 

32.  Code,  §  3280. 

33.  Code,  §  3299. 

34.  Code,  §  3286. 

35.  Guarantee  Co.  r.  Bank,  95  Va.  480,  28  S.  E.  909;  Code,  §  3272. 

36.  1  Chitty  PI.  398,  441;  Stephen  on  PI.,  §  98;  Hortons  v.  Townes. 
6  Leigh  47;  Davidson  v.  Watts,  111  Va.  394,  69  S.  E.  328. 


270  RULE   DAYS   AND   OFFICE    JUDGMENTS  §    183 

appear  by  attorney,  and  it  has  been  so  held.37  A  plea  in  sus- 
pension is  one  which  shows  some  ground  for  not  proceeding 
in  the  suit  at  the  present  time,  and  prays  that  the  pleadings 
may  be  stayed  until  that  ground  be  removed.  The  principal  plea 
of  this  kind  at  common  law  was  the  parol  demurrer,  interposed 
by  an  infant  defendant,  and  praying  that  the  proceedings  in  the 
cause  be  suspended  until  he  attains  his  majority.  It  is  provided 
by  statute  in  Virginia  that  the  proceedings  shall  not  be  stayed  be- 
cause of  the  infancy  or  insanity  of  a  party,  but  that  a  guardian  ad 
lit  em  shall  be  appointed  either  by  the  court,  the  judge  in  vacation, 
or  the  clerk  of  the  court,  and  that  he  shall  be  a  discreet  attorney 
at  law,38  if  one  is  to  be  had.  It  is  said  that  probably  the 
only  instance  of  a  plea  in  suspension  in  Virginia  is  that  the 
plaintiff,  since  the  contract  was  made,  has  become  an  alien 
enemy.39  It  is  probable  also  that  a  defendant  who  has  been 
adjudged  a  bankrupt,  but  not  discharged,  and  who  wishes  to 
plead  his  discharge  in  bar  of  the  action,  may  be  allowed  to 
plead  the  fact  of  adjudication  in  suspension  until  such  reason- 
able time  as  he  can  obtain  his  discharge. 

In  England  oyer  of  the  writ  in  a  case  is  no  longer  allowed, 
and  hence  there  can  be  no  plea  in  abatement  there  on  account 
of  variance  between  the  declaration  and  the  writ ;  but  such  a 
plea  is  allowed  by  statute  in  Virginia.40  The  statute,  however, 
is  liberal  in  the  allowance  of  amendments  of  the  writ  or  decla- 
ration so  as  to  correct  the  variance.  Misnomer  was  a  ground 
for  a  plea  in  abatement  at  common  law,  but  it  is  provided  by 
statute  in  Virginia  that  there  shall  be  no  plea  in  abatement 
for  misnomer,  but  that  the  declaration  may,  on  the  defendant's 
motion,  and  on  affidavit'  of  the  right  name,  be  amended  by  in- 
serting the  right  name.41  Although  a  plea  in  abatement  may  be 
allowed  in  a  proper  case  for  the  non-joinder  of  a  co-defendant, 
it  is  provided  in  Virginia  that  it  shall  not  be  allowed  unless 
it  be  stated  in  the  plea  that  such  person  is  a  resident  of  this 

37.  Kankakee  Drain  Dist.  v.  Coon,  130  111.  261,  22  N.  E.  607;  Puter- 
baugh  PI.  45,  and  cases  cited. 

38.  Code,  §  3255. 

39.  4  Min.  Inst.  753. 

40.  Code,  §  3259. 

41.  Code,  §  3258. 


§    183  DILATORY  PLEAS  AND  TIME  OF  FILING  271 

state,  and  unless  the  place  of  residence  of  such  person  be  stated 
with  convenient  certainty  in  the  affidavit  verifying  the  plea.42 

Giving  Plaintiff  a  Better  Writ. — As  we  have  seen,  pleas  in 
abatement  of  all  kinds  must  be  good  in  form  as  well  as  in 
substance,  and  as  a  general  rule  it  is  said  •  that  the  plea  must 
give  the  plaintiff  a  better  writ  so  as  to  enable  him  to  correct 
the  error  committed  in  his  first  writ.  When  the  plea  is  to 
the  jurisdiction  of  the  court,  it  would  seem  that  the  better  writ 
required  should  state  some  other  court  in  the  state  in  which 
the  writ  issued  having  jurisdiction  of  the  cause  of  action,  and 
it  has  been  held  that  if  the  plea  showed  that  there  was  no 
other  court  in  the  State  having  jurisdiction  of  the  cause  of 
action,  the  plea  would  for  that  cause  be  bad  on  demurrer;43 
but  it  has  been  held  more  recently  that  although  it  is  true  as 
a  general  rule  that  a  plea  to  the  jurisdiction  must  show  a  more 
proper  and  sufficient  jurisdiction  in  some  other  court  in  the 
state  wherein  the  action  is  brought,  this  requirement  is  not 
available  when  the  plea  shows  a  condition  of  facts  under  which 
no  court  in  the  State  has  jurisdiction.44  The  rule  is  not  of 
universal  application.  It  should  be  further  noticed  that  in  order 
to  constitute  a  good  plea  to  the  jurisdiction  every  ground  of 
jurisdiction  mentioned  in  the  statute  must  be  negatived  in  the 
plea,  else  the  plea  will  be  bad,  and  that  a  plea  which  does  this, 
although  it  negatives  jurisdiction  on  the  several  grounds  set 
forth  in  the  statute,  is  not  bad  for  duplicity.45 

Waiver  of  Defects. — It  is  a  well-established  rule  that  appear- 
ance to  the  merits  of  a  case  is  a  waiver  of  the  defects  in 
the  process  and  the  service  thereof.46  Undoubtedly  there  may 
be  a  special  appearance  for  the  purpose  of  making  objections 
to  defects,47  but  granting  or  accepting  a  continuance,  or  a  mo- 
tion to  quash  for  other  reasons  than  defects  in  the  process 

42.  Code,  §  3261. 

43.  Beirne   v.   Rosser,  26   Gratt.   537. 

44.  Deatrick  v.  Ins.  Co.,  107  Va.  602,  59  S.   E.  489. 

45.  Deatrick   v.   Inst.   Co.,  supra. 

46.  New  River  Co.  r.  Painter,  100  Va.  507,  42  S.  E.  300;  post,  §  188. 

47.  Post,  §  196. 


272  RULE   DAYS   AND   OFFICE    JUDGMENTS  §    183 

or  return,  amount  to  a  general  appearance.48  The  execution, 
however,  of  an  attachment  bond  by  a  defendant  for  the  pur- 
pose of  releasing  the  property  attached  does  not  amount  to  a 
general  appearance.49 

Objections  Other  than  by  Dilatory  Pleas. — Notwithstanding 
the  very  comprehensive  language  of  §  3259  of  the  Code,  de- 
claring that  in '  cases  other  than  misnomer,  objections  for  de- 
fects in  the  writ  or  return  or  any  variance  in  the  writ  from 
the  declaration  shall  be  made  only  by  a  plea  in  abatement, 
the  objection  may  be  otherwise  made  if  it  goes  to  the  validity 
of  the  writ  itself,  that  is,  where  the  question  is  not  only  as  to 
a '  defect  in  the  writ,  but  as  to  matter  rendering  the  writ  ab- 
solutely void.  If  the  objection  is  that  the  process  is  a  void 
process,  it  may  be  raised  not  only  by  a  plea  in  abatement, 
but  also  by  a  mere  motion,  or  the  objection  may  be  taken  by 
the  court  ex  officio.  Such  would  be  the  case,  for  instance, 
where  in  an  action  under  §  3215  of  the  Code,  process  was  sent 
out  of  the  county  for  service  when  the  case  was  not  within 
any  of  the  exceptions  mentioned  in  §  3220,  or  where  the  process 
was  returnable  more  than  ninety  days  from  its  date,  or  return- 
able on  the  date  of  its  issue,  or  to  other  than  a  rule  day  or 
term  of  the  court.  In  other  words,  if  the  process  be  illegally 
issued  or  executed,  the  objection  may  be  as  well  by  motion  to 
quash  as  by  plea  in  abatement.50  If  the  process  has  not  been 
served  at  all,  for  example,  in  case  of  a  foreign  attachment 
which  has  been  quashed,  and  there  has  been  no  process  but 
an  order  of  publication,  the  defendant  may  appear  specially 
and  move  to  dismiss  the  action.51  In  the  case  last  cited,  the 
court  said:  "The  view  relied  upon  by  the  plaintiffs  in  error 
[that  the  defence  must  be  by  plea  in  abatement]  applies  to 
a  defendant  who  has  been  summoned  to  appear,  or  who,  by 
appearance,  has  waived  the  summons.  It,  of  course,  cannot 

48.  New  River  Co.  v.  Painter,  supra;   Lane  v.   Bauserman,   103  Va. 
146,  48  S.  E.  857. 

49.  Hilton   -u.   Consumers    Can   Co.,   103   Va.   255,   48   S.    E.   899. 

50.  Warren  v.  Saunders,  27  Gratt.  259;   Raub  v.  Otterback,  89  Va. 
645,   16   S.   E.  933;   Noel  v.   Noel,  93   Va.   433,  25   S.   E.  242;    Lane  v. 
Bauserman,  supra. 

51.  Hilton  v.   Consumers   Can   Co.,  supra. 


§    183  DILATORY  PLEAS  AND  TIME  OF  FILING  273 

be  said  that  a  defendant  who  is  not  before  the  court,  either 
by  appearance  or  summons,  can  be  required"  to  interpose  any 
plea.  *  *  *  The  only  appearance  on  the  part  of  the 
defendant  was  for  the  purpose  of  asking  the  court  to  dismiss 
the  suit  because  the  defendant  had  not  been  properly  brought 
before  the  court,  and  this  motion  was  its  proper  and  only 
remedy.  'To  say  that  such  an  appearance  would  amount  to 
a  waiver  of  the  objection,  would  be  to  say  that  the  party  must, 
from  necessity,  forfeit  an  acknowledged  right  by  using  the  only 
means  which  the  law  affords  of  asserting  that  right.'  " 

Time  of  Filing  Dilatory  Pleas. — It  is  provided  by  statute 
in  Virginia  that  no  plea  in  abatement  shall  be  received  after 
the  defendant  has  demurred,  pleaded  in  bar,  or  answered  to 
the  declaration,  nor  after  a  conditional  judgment  at  rules.32 

Prior  to  the  present  statute,  the  statute  declaring  that  pleas 
in  abatement  should  not  be  received  "after  the  defendant  has 
demurred,  pleaded  in  bar,  or  answered  to  the  declaration,  nor 
after  a  rule  to  plead  or  a  conditional  judgment."  The  amend- 
ment consisted  in  dropping  the  words  "nor  after  a  rule  to 
plead."  It  will  be  recalled  that  if  the  defendant  fails  to  appear 
at  the  same  rules  that  the  declaration  is  filed,  a  conditional 
judgment  is  entered  against  him,  and  after  that  he  cannot  plead 
in  abatement,  but  if  he  has  his  appearance  entered  at  the  same 
rules  at  which  the  declaration  is  filed,  the  order  entered  at 
the  rules  is  a  rule  to  plead,  and  hence  under  the  present  stat- 
ute he  may  file  a  plea  in  abatement  after  a  rule  to  plead. 
Formerly  a  plaintiff  could  delay  filing  his  declaration  until  the 
last  practical  moment  of  the  third  rule  day,  and  thereby  in 
effect  deprive  the  defendant  of  the  opportunity  of  pleading  in 
abatement.  Now,  in  order  to  have  the  opportunity  to  inspect 
the  declaration,  the  plaintiff  has  simply  to  have  his  appearance 
entered  at  the  rules  at  which  the  declaration  is  filed;  there- 
upon the  clerk  will  give  him  a  rule  to  plead,  and  he  will  have  until 
the  next  rules — usually  two  weeks — in  which  to  prepare  his 
plea  in  abatement,  and  under  these  conditions  the  plea  in  abate- 
ment may  be  filed  at  the  next  rules  after  that  at  which  the 
declaration  is  filed,  but  he  cannot  postpone  it  longer.  But 

52.  Code,  §   3260. 
—18 


274  RULE   DAYS   AND  OFFICE    JUDGMENTS  §    184 

the  defendant  must  be  particular  to  have  his  appearance  en- 
tered at  the  rules  at  which  the  declaration  is  filed  in  order  to 
get  this  indulgence.53  The  defendant,  however, .  cannot  by  any 
device  he  may  resort  to  postpone  the  maturing  of  the  cause 
at  the  second  rules.  If  he  pleads  at  the  second  rules,  issue 
is  made  upon  his  plea;  if  he  fails  to  plead  the  rule  entered 
against  him  at  the  first  rules  is  made  absolute,  generally  by  a 
judgment  of  nil  dicit,  and  in  either  event  the  case  is  put  upon 
the  court  docket. 

§    184.    Powers  of  court  over  proceedings  at  rules. 

The  court  has  control  over  all  proceedings  at  the  rules  during 
the  preceding  vacation.  It  may  reinstate  a  case  discontinued, 
set  aside  any  of  the  proceedings,  or  correct  any  mistakes 
therein,  and  make  such  orders  therein  as  may  be  proper.54  If 
there  is  no  clerk  to  take  the  rules,  it  is  provided  by  statute 
that  the  case  shall  stand  continued  until  the  next  rule  day 
after  there  is  a  clerk.55  But  if  there  is  a  clerk  and  tthe 
process  has  been  properly  executed  and  he  has  simply  failed 
to  take  the  rules,  but  has  put  the  case  on  the  court  docket, 
the  court  may  either  remand  the  case  to  rules,56  or  it  may 
retain  the  case  and  require  the  clerk  to  enter  the  proper  rules 
on  the  rule  books,  maturing  the  case  for  hearing,  if  it  ap- 
pears that  the  defendant  will  not  be  prejudiced  thereby.57  This, 
however,  is  a  power  to  be  exercised  by  the  court  in  term,  and 
cannot  be  exercised  by  the  judge  in  vacation.58  It  is  made 
the  duty  of  the  clerk  ex  officio,  as  hereinbefore  pointed  out,  to 
dismiss  the  action  if  one  month  elapses  after  the  process  is 
returned  executed  without  the  declaration  being  filed.  This  the 
court,  at  the  next  succeeding  term,  has  ample  power  to  set  aside, 
but  it  will  not  do  it  except  for  cause  shown.  If  the  failure 
to  file  the  declaration  within  one  month  after  the  process  has 
been  returned  executed  is  due  simply  to  the  negligence  of  coun- 

53.  Graves'  Notes  on  PI.  51;   6  Va.   Law   Reg.  484. 

54.  Code,  §  3293. 

55.  Code,  §  3238. 

56.  Wall    v.   Atwell,    21    Gratt.    401. 

57.  So.   Ex.   Co.  v.  Jacobs,   109   Va.  27,   63   S.   E.   17. 

58.  Chase  v.  Miller,  88  Va.  791,  801,  14  S.   E.  545. 


§    185  SETTING  ASIDE  OFFICE  JUDGMENT  275 

sel,  and  especially  if  it  will  deprive  the  defendant  of  his  plea  of 
the  statute  of  limitations,  the  court  will  not  set  aside  the  order 
of  dismissal  at  the  rules.  The  refusal  to  set  it  aside  is  not 
for  lack  of  power,  but  because  it  is  deemed  unwise.  The  dis- 
missal is  in  the  nature  of  a  non-suit,  which  the  court  will  set 
aside  for  good  cause,  but  will  not  disturb  when  occasioned  by 
mere  negligence.59 

§  185.  Setting  aside  office  judgment. 

An  office  judgment  is  not  a  very  serious  matter,  if  proper 
steps  are  taken  to  vacate  it.  No  terms  or  conditions  whatever 
are  imposed  upon  the  defendant  as  the  price  of  vacating  it 
except  that  he  shall  plead  to  issue  and  shall  file  such  plea  be- 
fore the  judgment  becomes  final  by  mere  operation  of  law.  No 
consent  of  the  court,  or  of  anyone  else,  is  necessary  to  filing 
of  such  plea.  It  is  a  matter  of  right.  If  no  plea  is  filed, 
the  judgment  becomes  final  if  the  case  be  in  the  circuit  court, 
on  the  last  day  of  the  next  succeeding  term,  or  the  fifteenth 
day  thereof,  whichever  shall  happen  first;  and,  if  it  be  in  a 
corporation  court,  on  the  last  day  of  the  next  term  designated 
for  the  trial  of  civil  cases  in  which  juries  are  required,60  or 
on  the  fifteenth  day  thereof,  whichever  shall  happen  first;  and 
if  the  case  be  in  the  circuit  court  of  the  city  of  Richmond  or 
in  the  law  and  equity  court  of  said  city  and  be  matured  at 
rules  and  docketed  during  the  term  of  the  court,  it  becomes 
final  on  the  last  day  of  said  term.61  The  phrase  "next  term" 
as  used  in  this  section  does  not  include  special  terms,  but  only 
regular  terms.62  If  a  case  has  been  regularly  proceeded  in  at 
rules  and  is  properly  on  the  office  judgment  docket,  the  judg- 
ment will  become  final  according  to  the  terms  of  the  statute, 
notwithstanding  no  endorsement  of  the  proceedings  at  the 

59.  Wickham  v.  Green,  111  Va.  199,  68  S.   E.  259,  and  cases  cited. 

60.  This   provision   as   to   terms   "designated   for   the   trial    of   civil 
cases    in   which   juries    are    required"    has    no    application    to    Circuit 
Courts,    although    they    may    designate    certain    terms    as    quarterly 
terms   at  which   such   cases  are   to  be   tried.      Gring  v.   Lake   Drum- 
mond  Land  Co.,  110  Va.  754,  67  S.  E.  360. 

61.  Code,  §  3287. 

62.  Stultz  v.  Pratt,  103  Va.  536,  49  S.   E.  654. 


276  RULE  DAYS  AND  OFFICE   JUDGMENTS  §    185 

rules  may  have  been  made  upon  the  papers  in  the  case.63 
The  judgment  entered  in  the  clerk's  office  in  an  action  of  eject- 
ment, as  we  have  heretofore  seen,  is  not  what  is  commonly  called 
an  "office  judgment,"  and  does  not  become  final  automatically 
upon  the  adjournment  of  the  next  term  without  the  intervention 
of  the  court  or  jury.64 

Dicta  in  several  Virginia  cases  state  that  an  office  judgment 
may  be  set  aside  by  a  plea  to  the  merits  on  the  fifteenth  day  of 
a  term,  but  whether  or  not  that  is  a  correct  interpretation  of  the 
statute  is  by  no  means  free  from  doubt,  and  it  would  not  be 
safe  to  defer  pleading  beyond  the  fourteenth  day  of  the  term.65 
All  proceedings  in  an  action  at  law  after  an  office  judgment  in 
favor  of  the  plaintiff  has  become  final  are  a  nullity,  or  should 
be  set  aside,  so  as  to  give  the  plaintiff  the  benefit  of  the  final 
judgment  in  his  favor.  The  fact  that  the  plaintiff  took  issue 
on  a  plea  filed  after  the  office  judgment  became  final,  and  also 
asked  for  a  continuance  does  not  constitute  a  waiver  of  the  final 
judgment  in  his  favor.66  The  statute  in  Virginia  makes  pro- 
vision for  setting  aside  the  office  judgment  at  any  time  before 
it  becomes  final  by  pleading  to  issue,67  which  excludes  dilatory 
pleas.  But  it  may  be  set  aside  by  a  general  demurrer68  which 
is  considered  an  issuable  plea,  or  by  any  plea  to  the  merits.  The 
office  judgment  may  also  be  set  aside  and  the  plaintiff  be  es- 
topped to  claim  the  benefit  of  it  by  an  agreement  of  counsel, 
made  before  the  judgment  became  final,  for  a  postponement  of 
the  case  to  a  day  during  the  term  subsequent  to  the  fifteenth 
day,  and  the  judgment  which  is  thus  set  aside  by  agreement  of 
the  parties  cannot  subsequently  become  final  until  it  is  entered 
up  as  a  judgment  of  the  court.  The  statute  is  enacted  for  the 
benefit  of  plaintiffs  and  they  may  waive  it  if  they  choose,  and 
in  case  of  an  agreement  of  this  kind  will  be  deemed  to  have 
waived  it.69 

63.  Wall  v.  Atwell,  21   Gratt.   401. 

64.  Smithson  v.   Briggs,  33   Gratt.   180. 

65/Enders  v.  Burch,  15  Gratt.  64;  Baker  v.  Swineford,  97  Va.  112, 
33  S.  E.  542;  Gring  v.  Lake  Drummond  Co.,  110  Va.  754.  G7  S.  E.  360. 

66.  Gring  v.  Lake  Drummond  I.   Co.,  110  Va.   754,  67   S.   E.  360. 

67.  Code,  §  3288. 

68.  Syme  v.   Griffin,  4   Hen.   &   M.   277. 

69.  Pollard  v.  Amer.  Stone  Co.,  Ill  Va.  147,  68  S.  E.  266. 


§    185  SETTING  ASIDE  OFFICE  JUDGMENT  277 

A  defendant  in  an  office  judgment  cannot  be  compelled  by 
the  court  to  plead  until  he  chooses  to  do  so.  The  court  may 
sound  the  docket  (that  is,  call  it)  for  the  purpose  of  ascertain- 
ing if  any  pleas  are  to  be  filed,  and  the  defendant  may,  at  his 
election,  either  say  nothing  or  announce  his  intention  to  plead 
at  va  subsequent  day,  but  the  court  can  neither  compel  him  to 
plead  then,  nor  fix  a  day  when  he  shall  plead.  He  is  within  his 
legal  rights  if  he  pleads  to  issue  at  any  time  before  the  judg- 
ment becomes  final.  Up  to  this  period  he  is  master  of  the  sit- 
uation. 

Attention  is  particularly  called  to  the  last  paragraph  of  §  3287 
of  the  Code  providing  that  no  judgment  by  default  on  a  scire 
facias  or  summons  shall  become  final  within  two.  weeks  after 
the  service  of  such  summons  or  process.  If  the  case  is  ended 
at  rules,  it  is  the"  duty  of  the  clerk  to  put  it  on  the  court 
docket,  but  notwithstanding  the  fact  that  it  is  put  on  the  court 
docket  it  does  not  become  final  if  the  court  adjourns  within  two 
weeks  after  the  service  of  process.  The  case  should  be  continued 
on  the  court  docket  until  the  term  next  succeeding  the  expira- 
tion of  the  two  weeks  after  the  service  of  process.70  A  case 
in  which  there  has  been  an  order  for  an  enquiry  of  damages  at 
the  rules  and  which  stands  on  the  writ  of  enquiry  docket  of  the 
court  is  within  the  language  of  §  3288  of  the  Code,  and  the 
judgment  thereon  entered  at  the  rules  does  not  become  final  until 
the  writ  of  enquiry  has  been  executed,  but  after  the  writ  of  en- 
quiry has  been  executed  in  court,  the  judgment  entered  in  court 
will  not  be  set  aside  except  for  good  cause.  The  defendant  has 
no  right  to  plead  after  the  writ  has  been  executed  except  by 
leave  of  the  court  and  for  cause  shown.71 

Judgment  on  an  Issue  of  Fact  Made  by  a  Dilatory  Plea, — 
Intimately  connected  with  the  subject  of  dilatory  pleas,  which, 
we  have  seen,  must  be  filed  at  an  early  stage  of  the  case,  is  what 

70.  Dillard  v.  Thornton,  29   Gratt.  392. 

71.  Code,  §  3288;   Post  v.  Carr,  42  W.  Va.  73,  24  S.   E.  583;   Philip 
Carey  Man.  Co.  v.  Watson,  58  W.  Va.  189,  52  S.  E.  515;  Federation 
Glass  Co.  r.  Cameron  Glass  Co.,  58  W.  Va.  477,  52  S.  E.  518. 


278  RULE   DAYS  AND  OFFICE   JUDGMENTS  §    185 

judgment  should  be  entered  where  an  issue  of  fact  made  by  a 
dilatory  plea  is  found  against  the  defendant. 

"When  the  sole  issue  in  a  cause  is  an  issue  of  fact,  .which 
is  tried  and  found  for  the  plaintiff,  whether  the  issue  be  joined 
upon  a  fact,  upon  a  plea  in  abatement,  or  a  plea  in  bar,  the 
court,  upon  such  issue  being  so  found,  will  pronounce  final  and 
peremptory  judgment  against  the  defendant.  The  judgment 
upon  a  demurrer  to  a  plea  in  abatement  is  stated  on  page  287 
to  be  different  (it  is  there  respondeat  ouster),  for  such  is  the 
prr.yer  of  the  demurrer.  The  reason  assigned  for  the  differ- 
ence is  that  every  man  is  presumed  to  know  whether  his  plea 
be  true  or  false,  and  the  judgment  ought  to  be  final  against  him 
if  he  pleads  a  fact  which  he  knows  to  be  false,  and  which  is 
found  to  be  false.  But  every  man  is  not  presumed  to  know 
the  matter  of  law,  which  is  left  to  the  judgment  of  the  court 
on  demurrer."72 

The  following  statement  is  made  in  Puterbaugh  on  Pleading, 
for  which  a  number  of  cases  from  Illinois  are  cited :  "When 
an  issue  of  fact  is  thus  submitted  to  a  jury  for  decision  on  a 
mere  issue  of  the  abatement  of  the  writ,  the  effect  is  that 
the  defendant  admits  the  merits  of  the  plaintiff's  claim,  and  if 
the  issue  of  fact  in  abatement  is  decided  for  the  plaintiff,  the 
jury,  by  the  same  verdict,  should  assess  the  damages  of  the 
plaintiff. 

"If  the  defendant  is  in  default  as  to  all  issues  except  the  one 
made  by  his  plea  in  abatement,  upon  which  he  is  defeated,  he 
is  entitled  to  participate  in  the  investigation  only  for  the  pur- 
pose of  reducing  the  amount  of  plaintiff's  recovery."73 

The  statement  quoted  above  from  Robinson's  Practice  would 
probably  not  be  true  now  in  Virginia,  as  it  is  expressly  pro- 
vided that  the  defendant  "may  file  pleas  in  bar  at  the  Jsame 
time  ,with  pleas  in  abatement,  or  within  a  reasonable  time  there- 
after, but  the  issues  on  the  pleas  in  abatement  shall  be  first 

f 

72.  1   Rob.   Pr.    (old)    388,  389;   1    Encl.   PI.   &   Pr.   31   to   the   same 

effect,  and   cases  cited. 

73.  Puterbaugh  PI.  45. 


§    185  SETTING   ASIDE   OFFICE   JUDGMENT  279 

tried."74  The  corresponding  statute  in  West  Virginia  is:  "The 
defendant  may  plead  in  abatement  and  in  bar  at  the  same 
time,  but  the  issue  on  the  plea  in  abatement  shall  be  first  tried. 
And  if  such  issue  be  found  against  the  defendant,  he  may, 
nevertheless,  make  any  other  defences  he  may  have  to  the 
action."75 

74.  Code,  §  3264. 

75.  Code,  W.  Va.  (1906),  §  3841. 


CHAPTER  XXIII. 
VENUE  AND  PROCESS. 

§  186.  Venue. 

§  187.  How  process  is   obtained. 

In  assumpsit. 

In  covenant. 

Motion    for   judgment. 

Unlawful  detainer. 

Ejectment. 

Detinue. 

Trespass   vi    et   armis. 

Trespass  on  the  case. 

Trover. 

Slander  and  libel. 
§  188.  Nature    of   process. 
§  189.  Who   are   exempt  from    service. 
§  190.  Who  may  serve  process. 

§  191.  When   process   to   issue   and   when   returnable. 
§  192.  Service  of  process  on  natural  persons. 

Personal    service. 

Substituted  service. 

Married  woman. 

Non-residents. 

Infants. 

Insane   persons. 

Court  receivers. 
§  193.  Service   of  process   on    corporations. 

Domestic   corporations. 

Foreign    corporations. 

Publication   of  process. 
§  194.  Time  of  service. 
§  195.  Return    of    process. 

Service    on    officer. 

Service   on   agent. 
§  196.  Defective    service. 

§   186.    Venue. 

At  common  law  the  jury  was  composed,  as  far  as  possible,  of 
the  witnesses  who  knew  the  facts,  and  consequently  the  venire 
facias  was  directed  to  that  locality  from  which  the  jurors  were 
to  be  taken.  As  a  result  of  this,  the  plaintiff  in  his  declaration 


§  186  VENUE  281 

always  stated  the  place  at  which  the  principal  fact  of  his  case 
occurred,  or  in  other  words  laid  a  venue.  This  was  called  the 
venue  in  the  action.  Each  successive  pleading  had  to  lay  the 
place  of  the  principal  fact  alleged  in  the  pleading  as  the  jury 
was  to  come  from  that  place.  This  was  called  venue  of  the  fact 
in  issue.  In  Virginia  and  most  of  the  states  "places  where  ac- 
tions at  law  and  suits  in  equity  may  be  brought  are  prescribed 
by  statute  and  they  cannot  be  brought  elsewhere  against  resident 
defendants."1  It  is  further  said  in  Carr  v.  Bates,  supra: 
"Whether  they  (actions  or  suits)  can  be  brought  as  at  common 
law  against  a  non-resident  defendant  in  the  courts  of  any  county 
or  corporation  in  which  such  non-resident  may  be  found  and 
served  with  process  as  at  common  law,  as  was  held  in  Beirne  v. 
Rosser,  26  Gratt.  537,  541,  542,  has  been  questioned;2  but  it 
would  seem  to  be  settled  law  that  an  action  in  personam  prose- 
cuted by  a  summons  will  not  lie  against  a  foreign  corporation  at 
common  law,  since  under  the  common  law  conception  a  corpora- 
tion could  not  migrate,  but  must  dwell  in  the  place  of  its  crea- 
tion."3 If  the  venue  of  actions  and  suits  against  residents  is  pre- 
scribed by  statute  and  such  actions  and  suits  cannot  be  brought 
elsewhere,  it  is  not  perceived  why  the  same  rule  does  not  apply 
to  actions  and  suits  against  non-residents  also  as  the  venue 
as  to  both  sets  of  defendants  is  prescribed  for  the  most  part, 
if  not  entirely,  by  the  same  sections.  The  venue  of  actions  at 
law  as  well  as  suits  in  equity  in  Virginia  is  prescribed  by  the 
sections  of  the  Code  quoted  in  the  margin,  which,  however,  are 
to  be  read  and  considered  along  with  the  sections  on  the  subject 
of  service  of  process  which  are  also  given  in  the  margin.4  It 

1.  Carr  v.  Bates,  108  Va.  371,  376,  61  S.  E.  754;  Va.  &  So.  R.  Co. 
v.   Hollingsworth,   107   Va.   359,   58   S.   E.   572. 

2.  See  4  Va/  Law  Reg.  361;  5  Va.  Law  Reg.  346. 

3.  It   will   be   observed,   however,    from   cl.   4   of   §   3214,   quoted   in 
the  margin   that   if  the  nonresident  be   a  natural  person  he  may  be 
sued  "in   any  county  or   corporation   wherein   he  may  be   found  and 
served  with   process." 

4.  Section  3214  is  as  follows:     "Any  action  at  law  or  suit  in  equity 
except   where    it   is    otherwise    especially   provided,    may   be    brought 
in  any  county  or  corporation: 

"First.     Wherein  any  of  the   defendants  may  reside. 

"Second.     If   a   corporation   be   a   defendant,   wherein   its   principal 


282  VENUE  AND   PROCESS  §    186 

will  be  observed  from  reading  §§  3214  and  3215  of  the  Code 
that  the  plaintiff  frequently  has  a  choice  of  jurisdiction,  as  the 
provisions  of  these  sections  are  cumulative,  and  the  action  may 

office  is,  or  wherein  its  mayor,  rector,  president  or  other  chief  of- 
ficer resides. 

"Third.  If  it  be  to  recover  a  loss  under  a  policy  of  insurance, 
either  upon  property  or  life,  wherein  the  property  insured  was  sit- 
uated at  the  date  of  the  policy,  or  the  person  whose  life  was  in- 
sured resided  at  the  date  of  his  death  or  at  the  date  of  the  policy. 

"Fourth.  If  it  be  to  recover  land,  or  subject  it  to  a  debt,  or  be 
against  a  foreign  corporation  which  has  estate  or  debts  owing  to  it 
within  this  State,  wherein  such  land,  estate,  or  debts,  or  any  part 
thereof,  may  be;  or  if  it  be  against  a  defendant  who  resides  with- 
out, but  has  estates  or  debts  owing  to  him  within  this  State,  wherein 
such  debt  or  estate,  or  any  part  thereof,  may  be;  or  in  any  county 
or  corporation  wherein  he  may  be  found  and  served  with  process; 
or  if  it  be  against  a  defendant  who  resides  without,  but  has  no  es- 
tate or  debts  owing  to  him  within  this  State,  in  any  county  or 
corporation  wherein  he  may  be  found  and  served  with  process. 

"Fifth.  If  it  be  on  behalf  of  the  Commonwealth,  whether  in  the 
name  of  the  attorney-general  or  otherwise,  it  may  be  in  the  city  of 
Richmond. 

"Sixth.  If  it  be  an  action  or  a  suit  in  which  it  is  necessary  or 
proper  to  make  any  of  the  following  public  officers  a  party  defendant — to- 
wit:  the  governor,  attorney-general,  treasurer,  register  of  the  land 
office,  either  auditor,  superintendent  of  public  instruction,  or  com- 
mission of  agriculture;  or  in  which  it  may  be  necessary  or  proper 
to  make  any  of  the  following  public  corporations  a  party  defend- 
ant— to-wit,  the  board  of  education  or  other  public  corporation  com- 
posed of  officers  of  government,  of  the  funds  and  property  of  which 
the  Commonwealth  is  sole  owner;  or  in  which  it  shall  be  attempted 
to  enjoin  or  otherwise  suspend  or  affect  any  judgment  or  decree  on 
behalf  of  the  Commonwealth,  or  any  execution  issued  on  such  judg- 
ment or  decree,  it  shall  be  only  in  the  city  of  Richmond. 

"Seventh.  If  a  judge  of  a  circuit  court  be  interested  in  a  case 
which,  but  for  such  interest,  would  be  proper  for  the  jurisdiction 
of  his  court,  the  action  or  suit  may  be  brought  in  any  county  or 
corporation  in  an  adjoining  circuit." 

Section  3215  of  the  Code  is  as  follows:  "An  action  may  be  brought 
in  any  county  or  corporation  wherein  the  cause  of  action,  or  any 
part  thereof,  arose,  although  none  of  the  defendants  reside  therein." 

Section  3220  of  the  Code  is  as  follows:  "Process  from  any  court, 
whether  original,  mesne,  or  final,  may  be  directed  to  the  sheriff 
or  sergeant  of  any  county  or  corporation,  except  that  process  against 
a  defendant  to  answ-er  in  any  action  brought  under  section  thirty- 


§  186  VENUE  283 

be  brought  in  one  or  the  other  of  several  places.  For  example, 
for  a  tort  the  defendant  may  be  sued  either  where  he  resides  or 
where  the  cause  of  action  arose,  or  if  suit  be  brought  to  subject 

two  hundred  and  fifteen,  shall  not  be  directed  to  an  officer  of  any 
other  county  or  corporation  than  that  wherein  the  action  is  brought, 
unless  it  be  an  action  against  a  railroad,  express,  canal,  navigation, 
turnpike,  telegraph,  or  telephone  company,  or  upon  a  bond  taken 
by  an  officer  under  authority  of  some  statute  or  to  recover  dam- 
ages for  a  wrong,  or  against  two  or  more  defendants,  on  one  of 
whom  such  process  has  been  executed  in  the  county  or  corporation 
in  which  the  action  is  brought.  Process  shall  be  issued  before  the 
rule  day  to  which  it  is  returnable,  and  may  be  executed  on  or  be- 
fore that  day,  except  that  if  it  be  to  answer  in  an  action  brought 
under  section  thirty-two  hundred  and  fifteen,  and  be  executed  on 
the  defendant  without  the  county  or  corporation  in  which  the  ac- 
tion is  brought,  it  must  be  executed  at  least  ten  days  before  the 
return  day  of  such  process.  If  it  appear  to  be  duly  served  and  good 
in  other  respects,  it  shall  be  deemed  valid,  although  not  directed  to 
any  officer,  or  if  directed  to  an  officer,  though  executed  by  any 
other  to  whom  it  might  lawfully  have  been  directed.  It  shall  be 
returnable,  within  ninety  days  after  its  date,  to  the  court  on  the 
first  day  of  a  term,  or  in  the  clerk's  office,  to  the  first  or  third  Mon- 
day in  a  month,  or  to  the  first  day  of  any  rules,  except  that  a  sum- 
mons for  a  witness  shall  be  returnable  on  whatever  day  his  attend- 
ance is  desired,  and  process  awarded  in  court  may  be  returnable  as 
the  court  shall  direct." 

Section  3224  of  the  Code  is  as  follows:  "Any  summons  or  scire 
facias  may  be  served  as  a  notice  is  served  under  section  thirty-two 
hundred  and  seven,  except  that  when  such  process  is  against  a 
corporation  the  mode  of  service  shall  be  as  prescribed  by  the  fol- 
lowing section;  the  clerk  issuing  such  process  unless  otherwise  di- 
rected shall  deliver  or  transmit  therewith  as  many  copies  thereof  as 
there  are  persons  named  therein  on  whom  it  is  to  be  served." 

Section  3225  of  the  Code  is  as  follows:  "Process  against  or  notice 
to  a  corporation  may  be  served  as  follows:  "If  the  case  be  against 
a  city  or  town,  on  its  mayor,  recorder,  or  on  any  alderman,  council- 
man, or  trustee  of  such  city  or  town;  if  against  a  bank,  on  its  presi- 
dent, cashier,  treasurer,  or  any  one  of  its  directors;  if  against  a  rail- 
road company,  on  its  president,  cashier,  treasurer,  general  superin- 
tendent, or  any  one  of  its  directors;  if  against  some  other  corporation 
created  by  the  laws  of  this  State,  on  the  president,  rector,  or  other 
chief  officer,  cashier,  treasurer,  secretary,  or  any  one  of  its' directors, 
trustees,  or  visitors;  if  against  a  corporation  created  by  some  other 
State  or  country  or  in  any  case  if  there  be  not  in  the  county  or 
corporation  wherein  the  case  is  commenced  any  other  person 


284  VENUE  AND   PROCESS  §    186 

land  to  a  debt  it  may  be  either  in  the  county  where  the  land  lies, 
or  where  any  one  of  the  defendants  resides.-"5 

on  whom  service  can  be  aforesaid,  on  any  agent  of  the  corporation 
against  which  the  case  is  (unless  it  be  a  case  against  a  bank)  or 
on  any  person  declared  by  the  laws  of  this  State  to  be  an  agent  of 
such  corporation,  and  if  there  be  no  such  agent  in  the  county  or 
corporation  wherein  the  case  is  commenced  and  affidavit  of  that  fact 
and  that  there  is  no  person  in  said  county  or  corporation  on  whom 
there  can  be  service  aforesaid,  publication  of  a  copy  of  the  process 
or  notice  once  a  week  for  four  successive  weeks  in  a  newspaper 
printed  in  this  State  shall  be  a  sufficient  service  of  such  process  or 
notice,  except  that  in  the  case  of  an  insurance  company  created  by 
the  laws  of  this  State  process  or  notice  shall  be  directed  to  the 
sheriff  or  sergeant  of  the  county  or  corporation  wherein  the  chief 
office  of  such  company  is  located;  and  in  case  of  any  insurance 
company  or  surety  company  not  created  by  the  laws  of  this  State 
but  doing  business  in  this  State,  process  or  notice  shall  be  served  in 
the  manner  prescribed  by  sections  twelve  hundred  and  sixty-six  and 
twelve  hundred  and  sixty-seven  chapter  fifty-three  of  the  Code  of 
Virginia.  When  the  publication  is  of  process  it  shall  be  made 
on  an  order  directing  the  same  in  the  case  in  which  the  process  is- 
sues. The  order  may  be  entered  either  in  court  or  by  the  clerk  of 
the  court  at  any  time  in  vacation." 

'Section  3227  of  the  Code  is  as  follows:  "Service  on  any  person 
under  either  of  the  two  preceding  sections  shall  be  by  delivering 
to  him  a  copy  of  the  process  or  notice  in  the  county  or  corporation 
wherein  he  resides,  or  his  place  of  business  is,  or  the  principal  of- 
fice of  the  corporation  is  located;  and  the  return  shall  show  this, 
and  state  on  whom  and  when  the  service  was;  otherwise,  it  shall 
not  be  valid.  If  the  process  or  notice  be  served  on  an  agent,  or  be 
served  in  any  other  county  or  corporation  than  that  wherein  the 
suit  or  other  proceeding  is  brought  or  had,  it  shall  be  served  at 
least  ten  days  before  the  return  day  of  such  process  or  notice.  The 
term  'agent/  as  employed  in  each  of  the  two  preceding  sections,  shall 
be  construed  to  include  a  telegraph  operator,  telephone  operator, 
depot  or  station  agent  of  a  railroad  company,  and  toll-gatherer  of  a 
canal  or  turnpike  company." 

5.  Note  by  Prof.  Lile,  6  Va.  Law  Reg.  475,  476. 

Attention  is  called  in  this  connection  to  the  fact,  as  pointed  out 
in  the  above  note,  that  while  §  3214  of  the  Code  applies  both  to 
actions  at  law  and  suits  in  equity,  §  3215  is  confined  to  actions  at 
law. 

Clause  5  of  §  3214  allows  a  suit  or  action  on  behalf  of  the  com- 
monwealth to  be  brought  in  the  city  of  Richmond.  In  Common- 
wealth v.  McCue,  109  Va.  302,  63  S.  E.  1066,  it  is  held  that  the  auditor 


§  186  VENUE  285 

• 

In  all  jurisdictions  a  defendant  may  be  sued  where  he  resides, 
and  it  has  been  held  that  a  defendant's  place  of  residence  is  not 
changed  by  the  fact  that  he  is  serving  a  term  of  penal  servitude 
in  the  state  prison.6 

Under  §  3215  allowing  an  action  in  any  county  or  corporation 
wherein  the  cause  of  action,  or  any  part  thereof,  arose,  although 
none  of  the  defendants  reside  therein,  it  has  been  held  that  if 
any  part  of  the  cause  of  action  arose  in  the  jurisdiction  in  which 
the  action  is  brought  there  may  be  entire  recovery  for  the  whole 
damage.7  In  the  case  cited  in  the  margin  the  action  was  brought 
to  recover  for  negligent  injury  to  a  carload  of  horses  in  course 
of  transportation.  One  of  the  horses  was  slightly  injured  in  the 
city  of  Lynchburg,  but  the  principal  damage  occurred  before 
they  reached  that  city,  and  the  action  was  allowed  in  the  circuit 
court  of  that  city  to  recover  the  entire  damage.  In  N.  &  W. 
Ry.  Co.  v.  Crull,  112  Va.  -  — ,  70  S.  E.  521,  the  action  was 
against  two  corporations,  one  a  resident  and  the  other  foreign, 
to  recover  damages  for  failure  to  deliver  in  good  condition  a 
carload  of  horses  shipped  from  St.  Louis  to  Norfolk.  The 
horses  were  very  seriously  injured  in  consequence  of  gross  neg- 

of  public  accounts  is  the  only  officer  empowered  to  institute  pro- 
ceedings for  the  collection  of  costs  due  the  State  in  a  criminal 
prosecution,  and  that  if  the  claim  for  such  costs  be  asserted  by  the 
local  attorney  for  the  commonwealth,  without  the  consent  and  ap- 
proval of  the  auditor,  it  is  a  proceeding  without  authority,  and  that 
the  State  does  not  become  a  party  thereto,  an^l  is  not  bound  by  any 
decree  affecting  her  rights.  The  State  cannot  be  impleaded  without 
her  consent. 

Clause  6  of  §  3214  provides  that  actions  and  suits  to  which  cer- 
tain public  corporations  are  necessary  defendants  shall  be  brought 
in  the  city  of  Richmond.  It  has  been  held  that  this  statute  does 
not  authorize  a  suit  in  the  circuit  court  of  the  city  of  Richmond  by 
one  public  corporation  against  another.  Western  State  Hospital  v. 
General  Board,  112  Va.  — ,  70  S.  E.  505. 

Under  clause  7  of  §  3214  it  has  been  held  that  the  word  "may"  is 
permissive  only  and  although  a  circuit  judge  may  sue  in  any  county 
or  corporation  in  an  adjoining  circuit,  he  is  not  precluded  from  su- 
ing in  the  circuit  court  of  any  county  of  any  corporation  in  his  own 
circuit  in  which  any  of  the  defendants  reside.  Harrison  v.  Wissler, 
98  Va.  598,  36  S.  E.  982,  6  Va.  Law  Reg.  471.  and  note. 

6.  Guarantee  Co.  r.  Bank,  95  Va.  480.  28  S.  E.  909. 

7.  Ches.  &  O.  R.  Co.  v.  Bank,  92  Va.  495,  23  S.  E.  935. 


286  VENUE  AND   PROCESS  §    187 

• 

lect  of  one  or  the  other  or  both  of  the  carriers,  in  consequence 
of  their  failure  to  give  them  proper  care  and  attention;  and  it 
was  held  that,  where  a  railroad  company  undertakes  to  deliver  a 
shipment  in  good  condition  at  a  point  on  the  line  of  another  rail- 
road, and  the  shipment  is  delivered  in  bad  condition,  the  breach 
of  duty  which  gives  rise  to  a  cause  of  action  is  the  failure  to  de- 
liver in  good  condition  at  the  point  of  destination,  and  hence  the 
cause  of  action  arose  at  the  place  of  destination,  and  that  there 
might  be  a  joint  action  against  the  two. 

§  187.  How  process  is  obtained. 

In  England  actions  were  generally  commenced  by  suing  out 
an  original  writ,  the  function  of  which  was  not  only  to  summon 
the  defendant,  but  to  confer  jurisdiction  on  the  court  to  try  the 
case.  This  writ  was  obtained  as  a  matter  of  course  upon  filing  a 
prcecipe,  which  was  a  petition  asking  for  the  writ  and  setting 
out  the  whole  cause  of  action  fully,  so  that  the  chancellor  could 
see  what  sort  of  writ  to  issue,  and  to  what  sheriff  to  address  it. 
For  this  prcecipe  a  small  fine  was  exacted.  It  was  necessary  that 
the  writ  should  conform  to  the  prcecipe,  and  any  variance  was 
fatal.8  All  actions  were  instituted  in  one  of  the  three  law  courts 
at  Westminster,  regardless  of  where  the  parties  resided,  and  all 
issues  of  fact  were  referred  to  a  jury  for  determination.  Regu- 
larly this  jury  would  have  convened  at  Westminster,  but  in  or- 
der to  save  the  expense  and  annoyance  of  bringing  the  parties, 
jurors,  etc.,  to  Westminster,  the  venire  facias  for  the  jury  com- 
manded the  sheriff  to  summons  the  jurors  to  be  at  Westminster 
on  a  given  day  to  try  the  issues  unless  before  (nisi  prius}  that 
day  the  king's  judges  should  be  in  the  county  to  try  the  matter. 
These  judges  appeared  in  every  county  of  the  kingdom  twice  a 
year,  and  as  they  generally  tried  these  prcecipe  actions  they  be- 
came known  as  nisi  prius  judges,  and  trial  courts  are  to  this 
day  frequently  spoken  of  as  nisi  prius  courts,  and  the  judges  as 
nisi  prius  judges.9  Now  venue  is  fixed  by  statute,  and  all  of 
our  writs  are  what  are  known  as  judicial  writs,  such  as  are  pre- 

8.  Stephen  on  PI.,  §§  63,  64,  191,  192,  and  notes;  Graves'  Notes  on 
PI.  43. 

9.  4  Min.  Inst.  225,  226;  Burrill's  Law  Diet.,  Title  Nisi  P\rius. 


§    187  HOW  PROCESS  IS  OBTAINED  287 

scribed  by  the  constitution  or  statute.  It  is  no  longer  necessary 
to  lay  venue  in  the  pleadings  in  purely  personal  actions,  nor  to 
aver  jurisdiction,  nor  to  allege  any  matter  not  traversable.10  In 
modern  times,  an  action  is  begun  by  going  to  the  clerk's  office 
and  making  an  appropriate  memorandum  or  prcecipe  as  a  guide 
to  the  clerk  to  make  out  the  writ  to  be  issued  by  him.  This 
memorandum  is  generally  spoken  of  as  a  memorandum, 
though  in  some  jurisdictions,  as  in  Florida,  it  is  called  a  prcecipe 
or  memorandum.  It  is  said  to  be  the  chart  by  which  the  clerk 
is  to  be  controlled  in  issuing  the  writ.11  No  fine,  as  such,  is  im- 
posed for  issuing  this  summons,  but  the  state  imposes  what  is 
called  a  writ  tax,  regulated  by  the  amount  claimed  by  the  plain- 
tiff,12 and  the  action  is  then  commenced  by  the  issuance  and  serv- 
ice of  the  process,  which  in  Virginia  is  designated  a  summons. 
Instead  of  the  common  law  pracipe  we  now  have  the  memo- 
randum, instead  of  the  fine,  a  writ-tax,  instead  of  an  original 
writ  a  summons,  the  only  function  of  which  is  to  notify  the  de- 
fendant of  the  time  and  place  at  which  he  is  to  appear,  and  the 
nature  of  action  which  he  is  to  answer.  These  memoranda  are 
for  the  most  part  very  simple.  The  following  would  be  suffi- 
cient : 

In  Debt.  John  Smith  v.  Henry  Jones,  Debt  for  $500,  with  le- 
gal interest  thereon  from  Jan.  1,  1910,  until  payment.  Dam- 
ages $20.  To  1st  Oct.  Rules. 

Baker,  p.  q. 

If  damages  are  material,  as  they  would  be  in  an  action  of  d*ebt 
on  a  bond  with  collateral  condition,  they  should  be  laid  high 
enough  to  cover  any  possible  recovery,  generally  twice  as  much 
as  you  expect  to  recover,  and  in  the  above  memorandum  instead 
of  S20  would  be  inserted  a  larger  sum.  If  the  action  should  be 
for  two  or  more  debts,  for  instance,  a  bond  for  $1,000  due  Jan. 
1,  1910,  and  a  note  for  $500,  due  July  1,  1910,  the  memorandum 
should  cover  both,  and  state  that  it  is  an  action  of  debt  for 
$1,500,  with  interest  on  $1,000,  a  part  thereof,  from  Jan.  1,  1910r 
and  on  $500,  the  residue  thereof,  from  July  1,  1910.  At  least  this 

10.  Code,  §§  3243,    3244,   3245. 

11.  Turner  v.  Barraud,  102  Va.  324,  46  S.  E.  318. 

12.  Code,  page  2197,   cl.   14. 


288  VENUE  AND   PROCESS  §    187 

is  the  better  method  of  procedure,  though  as  seen  in  treating  of 
the  action  of  Debt,  it  is  not  necessary  to  claim  interest  in  the 
writ. 

In  Assumpsit,  the  memorandum  would  be:  John  Smith  v. 
Henry  Jones,  Assumpsit,  damages  $1,000.  To  1st  Oct.  Rules. 

Bevin,  p.  q. 

Here  damages  are  material,  and  must  be  laid  high  enough  to 
cover  any  possible  recovery. 

In  Covenant,  the  form  of  memorandum  would  be :  John 
Smith  v.  Henry  Jones,  Covenant  broken.  Damages  $1,000.  To 
1st  Oct.  Rules. 

Brown,  p.  q. 

The  damages  in  Covenant  are  material,  and  should  be  laid 
sufficiently  high  to  cover  any  possible  recovery. 

Motion  for  Judgment.  Here  there  is  no  writ  and  consequently 
no  memorandum.  The  proceeding,  in  this  case,  does  not  origi- 
nate in  the  clerk's  office.  The  notice  takes  the  place  of  both  the 
writ  (summons)  and  the  declaration. 

Unlawful  Detainer.  In  this  action  the  memorandum  would  be 
John  Smith  v.  Henry  Jones,  issue  writ  of  summons  to  defendant 
in  Unlawful  Detainer,  for  that  he  unlawfully  withholds  from  the 
plaintiff  the  possession  of  a  certain  house  and  lot  on  the  east 
side  of  Main  street,  in  the  town  of  Lexington,  Virginia,  com- 
monly called  the  Lexington  Hotel,  bounded  on  the  north  by  the 
Main  street  of  said  town,  on  the  east  by  a  ten  foot  alley,  on  the 
south  by  the  lot  of  James  Allen,  and  on  the  west  by  the  lot  of 
Frank  Glasgow,  which  possession  the  defendant  has  unlawfully 
withheld  from  the  plaintiff  for  a  period  not  exceeding  three 

years,  to-wit,  since  the  —  -  day  of  .     Damages  $500. 

To  1st  Oct.  Rules. 

Baumbach,  p.  q. 

This  memorandum  is  required  to  be  very  full  and  explicit,  as 
it  will  be  remembered  in  this  case  no  declaration  is  filed. 

Ejectment.  In  the  action  of  ejectment  no  writ  issues,  but  the 
notice  appended  to  the  declaration  takes  the  place  of  a  writ,  and 
hence  no  memorandum  is  made  in  the  clerk's  office.  This  action 
does  not  originate  in  the  clerk's  office.  It  will  be  observed  that 
the  two  actions  for  the  recovery  of  land  depart  somewhat  from 


§    188  NATURE  OF  PROCESS  289 

the  regular  procedure  in  common  law  actions.  In  Unlawful  De- 
tainer there  is  a  writ  but  no  declaration,  in  Ejectment  there  is 
a  declaration  but  no  writ. 

Detinue.  John  Smith  v.  Henry  Jones,  Detinue,  for  one  dia- 
mond ring,  containing  the  initials  N.  D.  of  the  value  of  $500. 
Damages  $500.  To  1st  Oct.  Rules.  Duncan,  p.  q. 

Interpleader.  These  proceedings  are  initiated  either  by  affi- 
davit under  section  2998,  or  a  petition  filed  in  court  under  sec- 
tion 2998,  and  are  not  commenced  by  a  summons,  as  the  ordi- 
nary actions  at  law  are.  The  form  of  the  petition  is  given,  ante, 
§  137,  note. 

Trespass  Vi  Ht  Armis.  John  Smith  v.  Henry  Jones,  Trespass 
vi  et  armis  for  assault  and  battery,  damages  $5,000.  1st  Oct. 
Rules.  Allen,  p.  q. 

Trespass  on  the  Case.  John  Smith  v.  Norfolk  &  Western 
Railway  Company,  Trespass  on  the  Case.  Damages,  $10,000. 
To  1st  Oct.  Rules.  Mann,  p.  q. 

Trover.  John  Smith  v.  Henry  Jones,  Trover  and  Conversion 
for  one  black  horse  5  years  old,  named  Jack,  now  in  the  posses- 
sion of  the  defendant  and'  formerly  in  the  possession  of  the 
plaintiff.  Damages  $1,000.  To  1st  Oct.  Rules. 

Hardy,  p.  q. 

Slander  and  Libel.  John  Smith  v.  Henry  Jones,  Trespass  on 
the  case  in  Slander  (or  in  Libel,  as  the  case  may  be).  Damages 
$10,000.  1st  Oct.  Rules.  Johnson,  p.  q. 

§   188.    Nature  of  process. 

The  old  method  of  commencing  an  action  by  a  capias  ad 
rcspondendnin  was  abolished  by  the  Code  of  1849,  except  in 
the  single  case  of  a  defendant  who  was  about  to  quit  the  state, 
which  is  treated  hereinafter  in  the  chapter  on  Attachments. 
Process  to  commence  a  suit  is  ordinarily  a  summons  command- 
ing some  officer  to  summon  the  defendant  to  answer  the  com- 
plaint of  the  plaintiff  at  a  time  and  place  mentioned  in  the  sum- 
mons. It  generally  emanates  from  some  court  having  jurisdiction 
of  the  controversy,  or  from  some  officer  designated  by  law.  The 
time  fixed  for  the  officer  to  return  the  process  is  called  the  return 

—19 


290  VENUE   AND   PROCESS  §    188 

day  of  the  summons.13  But  from  whatever  source  it  emanates, 
the  defendant  should  receive  notice  of  the  time  and  place  at 
which  he  is  to  make  answer,  and  be  afforded  a  reasonable  op- 
portunity to  be  heard.  In  some  jurisdictions  the  summons  is 
called  a  subpoena,  but  in  Virginia  that  name  is  generally  applied 
to  the  first  process  to  secure  the  attendance  of  a  ivitness,  and  not 
a  defendant  to  a  suit.  This  process  may  be  issued  at  any  time, 
in  term-time  or  vacation.  The  clerk's  office  is  always  open  for 
the  purpose  of  instituting  actions.14 

If  from  any  cause  a  summons  is  not  executed,  another  sum- 
mons called  an  alias  summons  may  be  issued,  and  if  this  be  not 
executed  a  pluries  summons  may  be  issued,  and  so  on  from  time 
to  time  until  there  is  a  return  of  "executed."  Every  summons 
subsequent  to  the  alias  is  called  a  pluries  summons.15  The  lan- 
guage of  the  statute  is :  "//,  at  the  return-day  of  any  process,  it 
be  not  returned  executed,  an  alias  or  other  proper  process  may 
be  issued,  etc.,"16  But,  when  must  this  alias  or  pluries  be  is- 
sued? Must  it  issue  at  that  rules,  or  may  it  issue  then  or  there- 
after? The  question  becomes  important  chiefly  as  affecting  the 
bar  of  the  statute  of  limitations.  It  would  seem  that  process  to 
commence  a  suit  must  be  continuous  until  a  return  of  "executed" 
is  obtained,  and  therefore  that  the  alias  or  pluries  summons  can 
only  issue  at  the  rules  at  which  the  previous  process  was  re- 
turned unexecuted;  that  a  failure  then  to  issue  the  alias  or 
pluries  would  cause  a  hiatus  in  the  action  and  operate  a  discon- 
tinuance ;  and  that  to  hold  otherwise  would  be  to  permit  a  plain- 
tiff to  continue  his  case  indefinitely  at  the  rules  and'  save  the  run- 
ning of  the  statute  of  limitations  for  any  length  of  time  he  chose. 
No  doubt  an  alias  subsequently  issued  would  be  good  as  an  orig- 
inal process,  but  is  it  good  as  an  alias  so  as  to  stop  the  running 
of  the  statute  from  the  date  of  the  original  summons?  This  lat- 
ter question  seems  to  be  answered  in  the  affirmative,  summarily 
and  without  discussion  of  the  statute,17  and  the  decision  is 

13.  Stephen  on   Pleading,   §  86. 

14.  Abney  v.   Ohio,  45  W.  Va.  446,  32  S.   E.  256. 

15.  Danville,  etc.,  R.  Co.  v.  Brown,  90  Va.  340,  18  S.   E.  278. 

16.  Code,  §  3221. 

17.  Va.   Fire   Ins.   Co.   v.   Vaughan,   88   Va.   832,   14   S.    E.   754.     The 
return  in  this  case  was  "executed,"  but  it  was  void  because  not  exe- 
cuted ten   days  before  the  return-day   (Staunton   B.  Ass'n  v.   Haden, 
92  Va.  201,  23  S.  E.  285)  and,  as  the  writ  was  valid,  the  return  was, 


NATURE  OF  PROCESS  291 

believed  to  accord  with  the  practice  in  some  of  the 
circuits,  but  its  soundness  may  well  be  questioned.  If  the  writ 
has  been  returned  unexecuted  it  is  functus  officio,  and  if  no  new 
writ  is  then  sued  out,  there  is  nothing  upon  which  to  base  the 
pendency  of  an  action.  The  action  once  commenced  by  suing 
out  the  original  writ  has  ceased  to  exist.  Its  life  has  become 
extinct.  If  the  plaintiff  may  thus  suspend  his  action  for  a 
month,  on  the  same  principle  he  may  suspend  it  for  a 
year  or  any  other  length  of  time,  and  thus  hold  the  defendant 
in  court  for  an  indefinite  length  of  time,  without  service  of  proc- 
ess, and  defeat  a  plea  of  the  statute  of  limitations  which  would 
be  otherwise  good. 

The  Constitution  of  Virginia  provides  that  all  writs  shall  run 
in  the  name  of  the  Commonwealth  of  Virginia,  and  be  attested 
by  the  clerks  of  the  several  courts.18  The  Constitution  of  West 
Virginia  contains  a  similar  provision,  and  it  has  been  held  in 
that  State  that  an  attestation  by  a  deputy  clerk  in  his  own  name 
is  not  sufficient.19  The  statute  in  Virginia  provides  that  an  ac- 
tion shall  be  commenced  by  a  summons  to  be  issued  on  the  or- 

in  effect,  a  return  of  "not  executed."  Counsel  for  the  defendant  in 
error  relied  upon  the  provisions  of  §  3259  of  the  Code  as  sufficient 
to  protect  his  rights,  and  possibly  the  case  may  be  explained  on  the 
hypothesis  that  it  was  the  duty  of  the  clerk  to  have  issued  the  alias 
and  that  the  court  simply  corrected  this  error  of  the  clerk,  but  the 
language  of  the  statute  hardly  justifies  the  idea  that  this  was  an  ex 
officio  duty  of  the  clerk. 

In  U.  S.  Oil  Co.  v.  Garland,  58  W.  Va.  267,  52  S.  E.  524.  there  is 
some  discussion  tending  to  sustain  the  holding  in  the  Vaughan  case, 
supra,  but  it  is  wholly  foreign  to  the  point  there  at  issue.  No  ques- 
tion of  limitation  of  actions  was  there  involved,  nor  was  it  necessary 
to  decide  whether  or  not  the  original  action  was  kept  alive  by  the 
issuance  of  an  alias.  The  question  involved  was  whether  or  not  an 
action  was  pending  to  which  an  attachment  could  be  ancillary.  The 
alias  may  not  have  been  good  as  an  alias,  and  in  fact  was  not,  and  yet 
was  all  sufficient  as  an  original  process  to  commence  an  action  to 
which  the  attachment  was  ancillary.  The  fact  that  it  was  called  an 
alias  was  immaterial.  The  opinion  in  the  case  concedes  that  the  con- 
tention of  the  text  is  the  law  in  Tennessee  and  Kentucky,  where  it 
is  held  that  "an  alias  should  be  tested  at  the  time  of  the  return  of 
the  former  summons,  and  the  same  to  be  continued  from  term  to 
term  until  service  is  secured." 

18.  Virginia   Constitution,    §    106. 

19.  Pendleton  v.   Smith,   1   W.  Va.   16. 


VENUE   AND   PROCESS  §    188 

der  of  the  plaintiff,  his  attorney  or  agent,  and  shall  not,  after  it 
is  issued',  be  altered  nor  any  blank  therein  rilled  up  except  by  the 
clerk.20  The  order  for  the  issue  of  the  summons  is  generally 
the  memorandum  for  the  institution  of  the  action,  such  as  is  set 
forth  in  §  187,  ante. 

It  has  been  made  a  question  whether  a  friendly  suit  in  which 
the  defendant  appears  and  answers  without  writ  was  properly 
begun,  but  it  is  plain  that  appearance  without  objection  is  a 
waiver  of  the  necessity  for  a  writ.21  In  case  of  confessions  in 
the  clerk's  office,  the  proper  method  is  for  the  summons  to  issue 
and  for  the  defendant  to  acknowledge  service,  and  then  confess 
judgment. 

"Though  §  3283  of  the  Code  prescribes  how  a  judgment  by 
confession  may  be*  entered  by  the  clerk  in  his  office  in  vacation 
with  particularity,  the  statute  has  been  held  for  the  most  part  to 
be  declaratory  merely  of  the  common  law,  and  that  such  judg- 
ment or  decree  will  be  valid  when  there  has  been  substantial 
compliance  with  the  statute.  Thus,  the  statute  declares  that  in 
any  suit  the  defendant  may  confess  judgment.  Nevertheless,  it 
has  been  repeatedly  held  that  such  judgment  is  not  invalid  be- 
cause there  was  no  suit  actually  pending,  and  no  previous  proc- 


ess. 


•22 


In  proceedings  by  motion  under  §§  3210  and  3211  of  the  Code, 
the  notice  takes  the  place  of  both  writ  and  declaration,  and  being 
presumed  to  be  the  act  of  the  parties  themselves,  is  to  be  liberally 
construed,  so  as  to  uphold  the  motion,  if  possible.  No  particular 
form  is  necessary.  Any  form  will  be  sufficient  if  the  defendant 
cannot  mistake  the  object  of  the  motion.23  So  also  in  ejectment, 

20.  Code,  §  3223,  is  as  follows:     "The  process  to  commence  a  suit 
shall   be   a   writ   commanding   the    officer   to   whom   it   is    directed   to 
summon  the  defendant  to  answer  the  bill  or  action.     It  shall  be  is- 
sued  on   the  order  of   the   plaintiff,   his   attorney  or  agent,   and   shall 
not,    after   it    is    issued,    be   altered,    nor    any    blank   therein    filled    up, 
except  by  the   clerk." 

21.  Hunter    v.    Stewart,    23    W.    Va.    549. 

22.  Brockenbrough's  Ex'x  v.  Brockenbrough's  Admr.,  31  Gratt.  580, 
599;   Shadrack's   Admr.  v.   Woolfork,   32   Gratt.   707;   Saunders  v.   Lip- 
scomb,   90   Va.   647,   19   S.    E.   450;    Manson   v.    Rawlings,   112   Va.  — , 
71    S.   E.   564. 

23.  Supervisors     v.     Dunn,     27     Gratt.     608;     Morotock    Ins.    Co.    v. 
Pankey,  91  Va.  259,  21  S.  E.  487. 


§    189  WHO  ARE  EXEMPT  FROM   SERVICE  293 

in  Virginia,  there  is  no  writ,  but  the  notice  takes  its  place,  and 
so  under  the  Code  practice,  copies  of  the  pleadings  served  take 
the  place  of  writs. 

Appearance  and  pleading  to  the  merits  is  a  waiver  of  proc- 
ess.24 But  to  have  this  effect  the  appearance  must  have  been  au- 
thorized. For  instance,  after  the  dissolution  of  a  partnership 
one  partner  has  no  implied  authority  to  employ  an  attorney  to 
represent  other  members  of  the  firm  even  as  to  firm  matters, 
and  if  he  does,  and  there  is  a  judgment  against  such  others  upon 
an  appearance  by  an  attorney  so  employed,  they  may  show  by 
parol  the  lack  of  authority  of  the  attorney  to  so  appear  and 
have  the  judgment  against  them  vacated.25 

§   189.    Who  are  exempt  from  service. 

Sovereign  States  are  exempt  generally  except  as  they  provide 
when  and  where  and  by  whom  they  may  be  sued.20  Section 
3214  of  the  Code,  hereinbefore  quoted  in  the  margin,  shows 
where  actions  affecting  the  State  may  be  brought.  Ambassadors 
and  public  ministers,  their  families  and  servants,  though  actu- 
ally resident  in  a  foreign  country,  are  considered  as  domiciled 
at  their  homes,  and  hence  are  not  subject  to  service  of  process 
where  actually  resident.  This  exemption,  however,  does  not  ex- 
tend to  consuls,  who  are  mere  commercial  agents,  resident 
abroad.27  Art.  1,  §  6.  U.  S.  Constitution,  exempts  representa- 
tives in  congress  from  arrest  during  the  session  of  congress  and 
in  going  to  and  returning  from  same  in  all  cases  except  treason, 
felony,  and  breach  of  the  peace.  The  circuit  court  of  the  east- 
ern district  of  Winconsin  has  held  that  this  provision  exempts 
them  at  like  times  from  service  of  summons  in  civil  cases,  and 
quite  a  number  of  authorities  are  cited  to  support  it.28  In  Vir- 
ginia we  have  a  statute  exempting  from  arrest  members  of  the 
Legislature,29  persons  in  military  service,30  and  judges,  grand 
jurors,  witnesses,  certain  officers  and  ministers  while  officiating 

24.  Norfolk   &  W.   R.  Co.  v.   Sutherland,   105  Va.  545,   54  S.   E.  465. 

25.  Hall  r.  Laning,  91  U.  S.  160;  Bowler  r.  Huston,  30  Gratt.  278-9. 

26.  Kawawanakoa  r.    Pollyblank,  205   U.   S.   349. 

27.  1   Kent  Com.  389,  and  notes. 

28.  Miner  v.   Markham,  28   Fed.   387. 

29.  Code,  §  198. 

30.  Code,  §  355. 


294  VENUE   AND    PROCESS  §    189 

as  such,31  but  as  we  have  no  arrest  of  residents  on  civil  proc- 
ess this  has  always  been  supposed  to  refer  to  arrest  on  criminal 
charges,  and  not  to  summons  in  civil  cases.  The  language  of 
§  198  forbids  taking  into  custody  and  imprisonment.  We  have 
no  case  in  Virginia  construing  the  above  statute,  and  elsewhere 
the  authorities  are  conflicting  as  to  whether  similar  provisions 
extend  to  service  of  civil  process.32  In  the  note  cited  in  the  mar- 
gin, it  is  said  that  resident  parties  and  witnesses  are  exempt  from 
service  while  in  good  faith  obeying  a  summons  in  another  case, 
and  in  going  and  returning. 

As  to  a  non-resident  party  or  witness  coming  into  the  State 
to  attend  a  case  of  his  own,  the  law  holding  him  exempt  from 
such  service  is  very  strongly  put  by  Judge  Phillips  of  the  South- 
ern District  of  Missouri.33  A  great  array  of  cases  is  cited  by 
him;  and  the  same  view  is  sustained  by  Mr.  Freeman  in  the 
note  above  referred  to.  Such  is  the  great  weight  of  authority, 
though  it  is  said  by  Mr.  Freeman  that  Rhode  Island,  Connecticut, 
Maryland  and  Maine  hold  otherwise.  The  basis  of  the  doctrine 
is  a  sound  public  policy,  which  leaves  suitors  and  witnesses  free 
and  untrammelled  by  fear  in  such  cases.  It  is  immaterial 
whether  the  witness  or  party  was  summoned  or  not.  The  ex- 
emption embraces  the  time  of  trial  and  a  reasonable  time  be- 
fore and  after  to  go  and  come.  It  need  hardly  be  said  that  a 
presence  obtained  by  fraud  will  not  avail  for  the  purpose  of 
service  in  another  case. 

A  prisoner  sent  to  the  penitentiary  does  not  thereby  lose  his 
former  residence,  but  may  be  sued  there  as  before.34  He  prob- 
ably could  not  be  sued  at  the  place  of  confinement,  but  a  suit  at 
his  place  of  abode  with  service  on  him  in  the  penitentiary  seems 
to  have  been  recognized  as  sufficient.35  Usually  committees  are 
appointed  for  the  estates  of  convicts,  and  they  and  not  the  con- 
victs are  sued.30 

Exemption  from  service  of  process  is  a  personal  privilege,  and 
will  be  deemed  to  have  been  waived  unless  claimed  in  due  time. 

31.  Code,  §  898. 

32.  Note   in  76  Am.   St.   Rep.   534,   535. 

33.  Hale  v.   Wharton,   73   Fed.    Rep.    740. 

34.  Guarantee  Co.  v.  Bank,  95  Va.  480,  28  S.  E.  909. 

35.  Neale  v.   Ultz,   75   Va.  480. 

36.  Code,  §§  4115,  4121. 


§    190  WHO  MAY  SERVE  PROCESS  295 

Courts  will  not  notice  it  ex  officio.  It  can  only  be  obtained  by 
plea,  or  by  motion  made  at  the  proper  time.  Probably  the  ap- 
propriate method  would  be  by  a  plea  in  abatement  or  suspen- 
sion.37 

§   190.    Who  may  serve  process. 

Generally  the  executive  officer  of  the  tribunal  from  which  the 
process  emanates  serves  the  process.  This  is  usually  the  sheriff 
or  sergeant,  but  this  is  a  matter  regulated  by  statute.  In  Vir- 
ginia process  may  be  directed  to  the  sheriff,  of  any  county,  or 
the  sergeant  of  any  corporation  (except  suits  or  actions  brought 
under  §  3215).  If  no  sheriff  or  sergeant,  or  he  is  incompetent, 
then  to  the  coroner,38  if  none,  to  a  constable.39  If  duly  served 
and  good  in  other  respects,  it  shall  be  deemed  valid,  although 
not  directed  to  any  officer,  or  if  directed  to  an  officer,  though 
executed  by  any  other  to  whom  it  might  lawfully  have  been  di- 
rected. Where  service  is  by  a  deputy  he  must  subscribe  his  own 
name  as  well  as  that  of  his  principal  to  the  return,40  otherwise 
the  return,  on  application,  should  be  quashed.41  If,  however,  the 
defendant  appears,  and  does  not  object,  the  defect  is  waived.42 

If  a  sheriff  or  sergeant  die  in  office,  it  is  provided  by  statute 
in  Virginia  that  deputies  in  office  at  the  time  of  their  death  shall 
continue  in  office  until  the  qualification  of  a  new  sheriff  or  ser- 
geant, and  execute  the  same  in  the  name  of  the  deceased  in  like 
manner  as  if  the  sheriff  or  sergeant  had  continued  alive,  until 
such  qualification,  unless  they  have  been  previously  removed  in 
the  manner  pointed  out  by  statute.43  Attention  is  called  to  the 
fact  that  in  Virginia  it  is  provided  by  statute  "that  in  divorce 
proceedings,  notices  for  the  taking  of  depositions,  or  for  any 
other  purpose,  shall  be  served  only  by  the  sheriff  of  the  county, 
or  the  sergeant  or  sheriff  of  the  city,  in  which  the  service  is 
sought  to  be  had."44  Under  §  3224  of  the  Virginia  Code  of 

37.  Prentis     v.     Com.,     5     Rand.     697;     Turnbull    v.    Thompson,    27 
•Gratt.   506. 

38.  Code,  §  893. 

39.  Code,  §  895. 

40.  Code,  §  900. 

41.  Mitchell  v.  Com.,  89  Va.  826,   17   S.   E.  480. 

42.  Harvey  r.   Skipwith,  16   Gratt.  410. 

43.  Code,  §  892. 

44.  Code,  §  3207. 


296  VENUE   AND   PROCESS  §    191 

1887,  process  to  commence  a  suit  could  only  be  executed  by  an 
officer.  As  the  possible  consequences  were  so  serious  it  was 
deemed  proper  to  provide  this  safeguard,  but  the  Legislature 
thought  otherwise,  and  changed  this  section  by  Acts  of  1891-2, 
p.  1083,  so  that  now  process  may  be  executed  by  a  private  indi- 
vidual upon  his  making  affidavit  as  to  the  time  and  manner  of 
the  service,  but  on  service  outside  the  State,  it  must  appear  from 
the  affidavit  that  the  person  serving  the  process  was  not  inter- 
ested in  the  suit.45  Section  3224  of  the  Code  of  1887  provides 
that  "any  summons  or  scire  facias  may  be  served  as  a  notice  is 
served  under  §  3207,  except  that  such  process  (unless  it  be  a 
summons  for  a  witness)  shall  in  all  cases  be  served  by  an  offi- 
cer, etc."  The  amendment  of  this  section  consisted  in  omitting 
the  words  in  italics.  In  view  of  this  change,  it  would  seem  that 
a  summons  to  commence  an  action  may  be  served  not  only  in 
the  manner  that  a  notice  is  served,  but  by  the  same  persons.  Be- 
fore the  change  it  had  been  held,  construing  §§  893  and  895  of 
the  Code,  that  unless  the  office  of  coroner  was  vacant,  or  the 
incumbent  under  disability,  a  constable  could  not  lawfully  serve 
a  process  directed  to  the  sheriff,  these  sections  providing  then, 
as  now,  that  when  it  was  unfit  for  a  sheriff  to  execute  a  process 
it  should  be  executed  by  a  coroner,  and  that  when  the  office  of 
coroner  was  vacant  or  he  was  interested  and  not  authorized  to 
act,  the  process  should  be  directed  to  and  executed  by  a  consta- 
ble.46 If  the  above  change  applies  to  the  persons  who  may  ex- 
ecute the  process  as  well  as  the  manner  of  service,  then  it  would 
seem  that  a  return  made  by  a  constable  may  be  made  in  his  offi- 
cial capacity  and  will  not  be  required  to  be  verified  by  affidavit. 
It  would  seem  manifestly  improper  to  direct  process  to  a 
sheriff  who  was  one  of  several  defendants,  but  if  so  directed, 
and  it  be  served  by  a  deputy  without  objection  on  the  part 
of  the  sheriff,  the  judgment  will  be  valid.  It  is  too  late  after 
the  judgment  to  object  to  the  manner  of  service.47 

§   191.    When  process  to  issue  and  when  returnable. 

In  Virginia  it  must  be  issued  before  the   rule  day  to  which 
it   is   returnable,   although   it  may  be   served  on   that   day,   and 

45.  Raul)    v.    Otterback,    89    Va.    645;    Code,    §    3232. 

46.  Andrews   v.   Fitzpatrick,   89   Va.   438,   16   S.   E.   278. 

47.  Turnbull  v.  Thompson,  27   Gratt.   306. 


§    192  SERVICE  OF  PROCESS  ON   NATURAL  PERSONS  297 

must  be  returnable  within  ninety  days  from  its  date.48  If  re- 
turnable more  than  ninety  days  after  its  date,  it  is  invalid, 
and  judgment  by  default  thereon  is  void.49  So,  also,  process 
not  returnable  to  a  legal  return  day  (first  day  of  a  term  or  of 
rules),  is  a  void  process.50  If  returnable  to  rules  it  must 
be  returnable  to  the  first  or  third  Monday  (when  they,  as  is 
usual,  are  rule  days),  and  not  to  any  other  day  of  the  rules, 
and  if  to  a  term  of  court,  to  the  first  day  of  the  term.51  It 
would  seem  that  it  must  be  executed  not  later  than  the  firsi 
day  of  the  rules  to  which  it  is  returnable.52  In  West  Virginia 
process  to  commence  an  action  may  issue  on,  be  returnable  to, 
and  be  served  on  the  same  first  Monday,  if  a  rule  day.53  This 
was  formerly  the  law  in  Virginia. 

§   192.    Service  of  process  on  natural  persons. 

The  usual  method  of  service  is  by  delivering  a  copy  to  the 
defendant  in  person,  and  this  method  is  to  be  observed  except 
in  so  far  as  the  same  has  been  changed  by  statute.  Where 
statutes  have  been  enacted  allowing  a  substituted  service,  they 
are  to  be  strictly  construed.54  Most  of  the  States,  including 
Virginia,  have  provided  for  substituted  service  as  to  certain 
classes  of  defendants,  and  also  for  constructive  service  in 
other  cases.  The  Virginia  statutes  are  given  in  the  margin 
of  different  sections  of  this  chapter.  Service  is  said  to  be 

48.  Code,  §  3220.     A  writ  issued   Nov.  24,  1908,  and  returnable   on 
the  third  Monday  in  January  is  returnable  within  ninety  days  from 
its  date.     The  omission  of  the  word  "next"  after  January   is  imma- 
terial   and    not    calculated    to    mislead.      (Arminius    Chemical    Co.    v. 
White.  112  Va.  — ,  71   S.   E.  637.)      It  may  be  noted  in  this  connec- 
tion  that   a  scirc  facias   on   a  recognizance   may   be   returnable   more 
than    ninety   days    from    its    date,    Lewis   v.   Com.,    106   Va.   20,    54   S. 
E.    999,    and    that    the    return    day    of    a    garnishment    may    be    more 
than  ninety  days  from  its  date.     Code,  §  3609. 

49.  Lavell  r.   McCurdy,   77  Va.   763. 

50.  Kyles   z>.   Ford,   2   Rand.   1;   Coda  r.  Thompson,   39   W.   Va.   67, 
19   S.   E.   148. 

51.  Code,  §  3220.. 

52.  5    Va.    Law    Reg.    490. 

53.  Spragins   7-.    West   Va.,    etc.,    Co.,   35    W.    Va.    139,    13    S.    E.   45; 
Handlan  r.    Handlan.   37  W.   Va.  486,   16   S.    E.  597;    Foley  v.   Ruley,. 
43    W.    Va.   513,   27    S.    E.   268. 

54.  Staunton  P.  B.  &  L.  Co.  r.  Haden,  92  Va.  201,  23  S.  E.  285. 


.298  VENUE   AND    PROCESS  §    192 

"substituted"  when  it  is  other  than  personal  on  one  who  is 
a  resident  of  the  state,  and  "constructive"  when  applied  to  a 
like  service  on  a  non-resident  of  the  State ;  but  whether  it 
is  one  or  the  other  there  must  be  a  substantial  compliance  with 
•every  requirement  of  the  statute.55 

In  Virginia  it  is  provided56  that  a  summons  may  be  served 
as  a  notice  is  served  under  §  3207,  and  the  latter  section  pro- 
vides :  "A  notice,  no  particular  mode  of  serving  which  is  pre- 
.scribed,  may  be  served  by  delivering  a  copy  thereof  in  writing 
to  the  party  in  person ;  or,  if  he  be  not  found  at  his  usual 
place  of  abode,  by  delivering  such  copy  and  giving  information 
of  its  purport  to  his  wife  or  any  person  found  there,  who  is 
a  member  of  his  family,  and  above  the  age  of  sixteen  years; 
or  if  neither  he  nor  his  wife,  nor  any  such  person  be  found 
there,  by  leaving  such  copy  posted  at  the  front  door  of  said 
place  of  abode.  Any  sheriff,  sergeant,  or  constable  thereto  re- 
quired, shall  serve  a  notice  in  his  county  or  corporation,  and 
make  return  of  the  manner  and  time  of  service;  for  a  failure 
so  to  do  he  shall  forfeit  twenty  dollars.  Such  return,  or  a 
similar  return  by  any  other  person  who  verifies  it  by  affidavit, 
shall  be  evidence  of  the  manner,  and  time  of  service :  provided, 
however,  that  in  divorce  proceedings  notices  for  the  taking  of 
depositions,  or  for  any  other  purpose,  shall  be  served  only  by 
the  sheriff  of  the  county  or  the  sergeant  or  sheriff  of  the  city 
in  which  the  service  is  sought  to  be  had." 

Personal  service  may  be  on  the  defendant  anywhere  he  may 
be  found  in  the  officer's  bailiwick,  but  the  officer  is  not  required 
to  search  for  him  at  but  one  place,  and  that  is  at  his  usual 
place  of  abode,  and  if  he  be  not  found  "at  his  usual  place  of 
abode,"  then  the  officer  may  make  the  substituted  service,  but 
his  return  must  show  why  he  made  the  substituted  service, 
and  that  reason  must  be  the  one  given  in  the  statute,  else  the 
return  will  be  bad.  The  different  methods  of  service  provided 
by  this  section  are  not  cumulative  but  successive.  Service  can- 
not be  made  upon  a  member  of  the  family  if  the  defendant 
be  found  at  his  place  of  abode,  and  there  can  be  no  posting 
if  a  member  of  the  family  above  the  age  of  sixteen  years  be 

55.  19    Encl.    PI.    &    Pr.    625;    Staunton    P.    B.    &   L.    Co.   v.    Haden. 
supra. 

56.  Code,   §   3224. 


§    192  SERVICE  OF  PROCESS  ON   NATURAL  PERSONS  299 

found  at  the  place  of  abode  of  the  defendant;  and,  when  one 
method  of  service  is  substituted  for  another,  the  return  must 
show  a  right  to  adopt  the  inferior  method  of  service  by  negativ- 
ing ability  to  get  the  better  service.  The  officer  has  no  right 
to  make  the  substituted  service  except  when  the  statute  so  pro- 
vides.57 The  substituted  service  may  be  upon  the  defendant's 
wife  or  any  person  found  there  who  is  a  member  of  his  family 
above  the  age  of  sixteen  years.  It  is  immaterial  what  the  age 
of  the  wife  is,  but  if  served  on  a  member  of  the  family  he 
or  she  must  be  over  the  age  of  sixteen  years.  But  whether 
served  on  the  wife  or  member  of  the  family,  the  service  can 
only  be  made  at  the  defendant's  usual  place  of  abode  and  not 
elsewhere.58  The  officer  may  serve  either  on  the  wife  or  a 
member  of  the  family  at  his  option,  there  is  no  choice  or  prefer- 
ence between  them.  Furthermore,  when  this  kind  of  substituted 
service  is  adopted  the  officer  must  give  "information  of  its  pur- 
port" to  the  person  upon  whom  the  service  is  made,  and  his 
return  must  show  this.  "To  authorize  a  personal  judgment 
on  substituted  service  of  process  the  terms  of  the  statute  au- 
thorizing such  service  must  be  strictly  complied  with.  Courts 
cannot  dispense  with  any  of  the  statutory  requirements,  even 
though  satisfied  that  the  method  actually  adopted  for  giving 
the  defendant  notice  was  better  than  that  prescribed  by  law. 

"Service  of  a  summons  on  a  defendant  by  delivering  a  copy 
thereof  to  his  wife  is  not  sufficient  where  the  officer's  return 
fails  to  show  that  he  gave  her  information  of  its  purport,  and 
a  judgment  by  default  on  such  service  is  void.  The  fact  that 
the  defendant  actually  received  from  his  wife  the  copy  left  with 
her  for  him  in  time  to  have  made  defence  to  the  suit  is  im- 
material."r>!) 

It  has  been  held  by  the  Circuit  Court  of  the  United  States 
for  the  Western  District  of  Virginia511*  (construing  the  Vir- 
ginia statute)  that  when  the  service  is  upon  the  defendant's 
wife,  the  return  must  show  that  she  was  a  member  of  defend- 
ant's family,  as  they  might  be  living  separate  and  apart  from 

57.  Settlemier  r.  Sullivan.  97  U.  S.  444. 

58.  Smithson  r.   Briggs,   33   Gratt.    183;   Crockett  r.    Etter,   105   Va. 
679,   54  S.   E.  864.     See  also   Goolshy  r.   St.  John,  25   Gratt.   146. 

59.  Park.  L.  &  I.  Co.  r.  Lane,  106  Va.  304,  55  S.  E.  690. 
59a.  King  r.  Davis,  137  Fed.  198,  11  Fed.  Rep.  177. 


300  VENUE   AND   PROCESS  §    192 

each  other,  but  this  view  seems  to  be  too  technical,  and  is  in 
conflict  with  Smithson  v.  Briggs,  supra.  In  the  lattter  case  the 
return  was :  "G.  W.  Smithson  not  being  found  at  his  usual 
place  of  abode,  a  true  copy  of  the  within  rule  was  left  with 
his  daughter,  at  his  residence,  who  is  over  the  age  of  sixteen 
years  and  purport  explained  to  her,  this  28th  day  of  August, 
1871."  No  objection  seems  to  have  been  made  on  the  ground 
that  the  name  of  the  person  upon  whom  service  was  made 
was  not  given,  but  it  was  argued,  and  that  was  the  view  taken 
by  Judge  Anderson,  that  the  return  was  bad  because  it  did 
not  show  that  the  daughter  was  a  member  of  the  defendant's 
family,  and  also  because  the  service  was  "at  his  residence" 
instead  of  "at  his  usual  place  of  abode,"  but  the  majority  of 
the  court  overruled  both  contentions,  and  held  that  the  word 
"residence"  in  the  connection  in  which  it  was  used  was 
synonymous  with  "usual  place  of  abode,"  and  that  it  would  be 
presumed  that  the  daughter  was  a  member  of  defendant's  family. 

There  is  some  conflict  as  to  who  is  "a  member  of  his  family" 
within  the  meaning  of  the  statute.  It  has  been  held  that  "a 
mere  boarder,  a  stranger  to  his  blood"  is  not00  a  member  of 
the  family,  and  also  that  he  is.61 

Substituted  service  by  serving  on  a  member  of  the  family 
is  generally  held  to  have  the  same  effect  as  personal  service, 
and  to  be  a  sufficient  basis  for  a  personal  judgment,  provided 
the  terms  of  the  statute  authorizing  it  have  been  strictly  com- 
plied with.  Certainly  such  service  has  been  repeatedly  recog- 
nized in  Virginia  and  West  Virginia.02  Whether  a  service  by 
posting  at  the  front  door  of  the  residence  when  no  one  is 
found  there  is  sufficient  seems  not  to  have  been  passed  on  in 
Virginia.  The  chief  question  is  whether  such  posting  con- 
stitutes "due  process  of  law."  Whatever  else  this  expression 
may  mean  when  applied  to  judicial  proceedings,  it  means  notice 
and  a  reasonable  opportunity  to  be  heard  by  a  competent  legal 
tribunal  before  which  a  party's  rights  may  be  fairly  asserted 

60.  Fow'ler  v.   Mosher,  85  Va.  421,  1  S.   E.   542. 

61.  Segouine    v.    Auditor,    4    Munf.    398;    Dobbins    v.    Thompson,    4 
Mo.    118. 

62.  1!)  Encl.  PI.  &  Pr.  624;  Crockett  v.   Etter,  supra;   Park  L.  &  I. 
Co.,  supra;   Capehart   r.   Cunningham,    12   W.   Va.   750. 


§    192  SERVICE  OF  PROCESS  ON   NATURAL  PERSONS  301 

or  defended.  As  stated,  we  have  no  direct  decision  in  Virginia 
on  the  right  to  take  a  personal  judgment  by  default  against 
a  defendant  brought  before  the  court  by  a  notice  or  summons 
posted  at  his  residence,  but  the  right  to  take  such  judgment 
seems  to  have  been  tacitly  admitted  by  the  profession,  as  the 
question  does  not  appear  to  have  been  raised  in  any  reported 
case,  nor  is  it  discussed  by  either  by  Prof.  Minor,  or  Mr.  Barton. 
The  validity  of  the  statute  seems  to  have  been  conceded  in 
the  cases  arising  under  the  statute,  and  the  contest  to  have  been 
waged  on  other  grounds.63  It  seems  plain  from  the  language 
of  the  Virginia  statute  that  where  posting  is  allowed  at  all, 
it  must  be  at  the  then  residence  of  the  defendant,  and  not 
at  his  former  residence.64 

Process  against  a  married  woman  must  be  served  personally. 
The  provisions  of  the  statute  for  the  service  of  process  must 
be  substantially  complied  with,  and  the  method  of  service  can- 
not be  otherwise  than  is  there  prescribed.  The  Virginia  statute 
allowing  a  substituted  service  was  enacted  at  a  time  when  a 

63.  Lewis  r.  Botkin,  4  W.  Va.  533;  Capehart  v.  Cunningham,  supra; 
Earle  v.  McVeigh,  91  U.  S.  503.     In  the  last-mentioned  case,  arising 
under  the  Virginia  statute,  it  is  said:     "Notice  to  the  defendant,  ac- 
tual or  constructive,  is  an  essential  prerequisite  of  jurisdiction.     Due 
process  with   personal   service,  as  a   general   rule,   is   sufficient   in   all 
cases;  and  such  it  is  believed  is  the  law  of  the  State  where  the  judg- 
ments  were   recovered   in   this   controversy,   in   all   cases  where   such 
service  is  practicable.     But  the   laws   of  that   State   also  provide  for 
service   in    three   classes   of   cases   in   which    personal    service    cannot 
be  effected:      (1)    Residents  who  are  temporarily  absent  from  home. 
(2)    Service    may   also   be    made   upon    persons    not    residents    of   the 
State.      (3)    Where   the   party   resides   in   the   State,  in   case   it  is  not 
"known  in  what  particular  county  he  has  his  residence. 

"1.  Temporary  absence  from  home  will  not  defeat  service,  as  in 
that  case  the  statute  provides  that  notice  may  be  given  to  the  party 
"by  delivering  a  copy  of  the  process  to  the  party  in  person;  or,  if 
he  be  not  found  at  his  usual  place  of  abode,  by  delivering  such 
copy  and  giving  information  of  its  purport  to  his  wife,  or  any  white 
person  found  there,  who  is  a  member  of  his  family,  and  above  the 
age  of  sixteen  years;  or,  if  neither  he  nor  his  wife  nor  any  such 
white  person  be  found  there,  by  leaving  such  copy  posted  at  the 
front  door  of  his  usual  place  of  abode." 

64.  Earle  v.   McVeigh,   91   U.   S.   503;   Capehart  v.   Cunningham,   12 
\V.  Va.  750. 


302  VENUE   AND   PROCESS  §    192 

married  woman  could  not  be  sued  alone  at  law,  and  has  not 
been  altered  since  her  disabilities  have  been  removed,  and  while 
it  is  true  that  this  would  make  no  difference  if  the  language  of 
the  statute  were  broad  enough  to  cover  the  case,  and  that 
§  5,  clause  13  of  the  Code  provides  that  "a  word  importing 
the  masculine  gender  only,  may  extend  and  be  applied  to  females 
as  well  as  males,"  still  there  is  no  authority  for  substituting 
"husband"'  for  "wife,"  nor  for  making  the  family  her  family 
when  the  husband  is  still  alive  and  the  head  of  the  family. 
The  substituted  service  is  only  allowed,  under  the  statute,  if  he 
be  not  found  at  his  usual  place  of  abode,  and  the  copy  is  to 
be  delivered  to  "his  wife,"  or  to  a  member  of  his  family.  Such 
language  seems  to  be  wholly  inapt  to  describe  substituted  service 
on  the  wife,  and  to  hold  it  applicable  to  her  would  not  be  a 
substantial  compliance  with  the  statute.  Furthermore,  there  may 
be  good  reasons  for  not  allowing  such  service. 

Service  of  process  upon  a  non-resident  found  within  the 
jurisdiction  is  valid,  and  will  warrant  a  personal  judgment 
against  him  unless,  for  some  reason,  he  is  exempt  from  service.65 
But  process  of  a  State  cannot  extend  beyond  its  own  borders, 
and  there  are  no  means  by  which  one  State  can  acquire  juris- 
diction over  the  person  of  a  resident  of  another  so  as  to  render 
a  personal  judgment  against  him,  so  long  as  he  does  not  submit 
to  its  jurisdiction,  nor  subject  himself  to  service  of  process  by 
going  within  its  confines.  Every  State  has  and  may  exercise 
jurisdiction  and  sovereignty  over  persons  and  property  within 
its  territory,  but  not  over  persons  without  it.  Whether  the 
attempted  service  be  by  order  of  publication,  or  by  actual 
service  in  the  foreign  State,  it  is  equally  void  as  a  basis  for 
a  personal  judgment  or  decree.  The  mere  fact  that  the  non- 
resident owns  property  within  the  State  which  may  be  subjected 
by  appropriate  proceedings  for  that  purpose  does  not  give  juris- 
diction over  him  personally.  A  personal  judgment  by  default 
taken  against  a  non-resident  upon  process  served  by  publication, 
or  by  service  outside  the  jurisdiction,  is  a  nullity.  For  a  per- 
sonal judgment  there  must  be  personal  service  of  process  or 
what,  in  law,  is  deemed  its  equivalent.66  Property  within  the 

65.  See   ante,   §    189. 

66.  Pennoyer  v.   Neff,   95   U.   S.   714.     This   is   the   leading  case  on 
the    subject.      It    has    since    been    affirmed    in    numerous    cases,    State 
and  federal. 


§  192       SERVICE  OF  PROCESS  ON  NATURAL  PERSONS         303 

State  may  be  subjected  because  its  location  within  the  State 
confers  jurisdiction  to  subject  it  by  appropriate  proceedings 
in  rem,  but  this  does  not  confer  jurisdiction  over  the  person 
of  the  non-resident.  The  jurisdiction  to  render  a  personal 
judgment  against  the  non-resident  must  exist  at  the  time  the 
action  is  instituted.  The  following  propositions  taken  from  the 
head  note  in  Pennoyer  v.  Neff  state  the  law  on  these  subjects : 
"A  personal  judgment  is  without  any  validity,  if  it  be  rendered 
by  a  State  court  in  an  action  upon  a  money  demand  against  a 
non-resident  of  the  State,  who  was  served  by  a  publication  of 
summons,  but  upon  whom  no  personal  service  of  process  within 
the  State  was  made,  and  who  did  not  appear;  and  no  title  to 
property  passes  by  a  sale  under  an  execution  issued  upon  such 
a  judgment. 

"The  State,  having  within  her  territory  property  of  a  non- 
resident, may  hold  and  appropriate  it  to  satisfy  the  claims  of 
her  citizens  against  him ;  and  her  tribunals  may  inquire  into 
his  obligations  to  the  extent  necessary  to  control  the  disposition 
of  that  property.  If  he  has  no  property  in  the  State,  there 
is  nothing  upon  which  her  tribunals  can  adjudicate. 

"Substituted  service  by  publication,  or  in  any  other  authorized 
form,  is  sufficient  to  inform  a  non-resident  of  the  object  of 
proceedings  taken,  where  property  is  once  brought  under  the 
control  of  the  court  by  seizure  or  some  equivalent  act;  but 
where  the  suit  is  brought  to  determine  his  personal  rights  and 
obligations,  that  is,  where  it  is  merely  in  personam,  such  service 
upon  him  is  ineffectual  for  any  purpose. 

"Process  from  the  tribunals  of  one  State  cannot  run  into 
another  State,  and  summon  a  party  there  domiciled  to  respond 
to  proceedings  against  him ;  and  publication  of  process  or  of 
notice  within  the  State  in  which  the  tribunal  sits  cannot  create 
any  greater  obligation  upon  him  to  appear.  Process  sent  to 
him  out  of  the  the  State,  and  process  published  within  it,  are 
equally  unavailing  in  proceedings  to  establish  his  personal  lia- 
bility." 

It  may  be  observed,  however,  that  a  suit  or  proceeding  to 
determine  the  personal  status  of  a  citizen  is  a  quasi  proceeding 
in  rein,  as  in  a  suit  for  divorce,  for  example,  and  there  may 
be  constructive  service  by  publication,  but  the  right  is  limited 


304  VENUE   AND   PROCESS  §    192 

to  the  determination  of  such  status  and  does  not  extend  to  a 
personal  decree  for  costs,  alimony  and  the  like.67 

A  non-resident  may,  of  course,  submit  to  the  jurisdiction  of 
the  court  if  he  chooses  to  do  so.  He  does  submit  by  instituting 
an  action  in  the  court,  or  by  filing  a  plea  to  the  merits  of  an 
action  brought  against  him  by  another,  or  by  merely  acknowl- 
edging due  and  legal  service  of  the  writ  for  the  purpose  of 
submitting.  Mere  acknowledgment  of  service  is  probably  not 
sufficient,  but  if  a  party  outside  of  the  State  acknowledges  "due" 
or  "legal"  service  of  the  writ,  this  is  held,  by  the  weight  of 
authority,  to  be  evidence  of  submission  to  the  jurisdiction  of 
the  court  and  to  warrant  a  personal  judgment.08  It  has  been 
held,  however,  in  a  poorly  considered  case  in  Virginia  that  an 
acknowledgment  of  "legal  service"  simply  has  the  effect  of  an 
order  of  publication  duly  published  and  posted.09 

If  the  object  of  the  proceeding  against  a  non-resident  is  to 
get  a  personal  judgment,  then  the  service  of  process  must  be 
personal  u«ithin  the  State  from  which  it  issues,  or  its  equivalent. 
Nothing  short  of  this  will  suffice.70  Personal  service  on  a  de- 
fendant outside  the  jurisdiction  of  the  State  can  never  warrant 
a  personal  judgment.  It  may  have  the  effect  of  an  order  of 
publication  duly  published  and  posted,  but  it  cannot  have  any 
greater  effect.71 

67.  Pennoyer  v.   Neff,  supra;   Garner  v.   Garner,   56   Mo.   127;   note, 
50  L.   R.  A.  583,  584,  and  cases  cited;   Lile's   Notes  on  Corporations 
350. 

68.  Jones  v.  Merrell,  113  Mich.  433,  71  N.  W.  838,  and  cases  cited; 
19   Encl.   PI.   &  Pr.  702.     See,   however,   White  v.   White,   66   W.   Va. 
79,  66   S.   E.  2. 

69.  Smith   v.    Chilton,   77   Va.    535;    White   v.   White,   supra.      See   in 
this  connection  §  3232  declaring  that  personal  service  of  a  summons, 
etc.,    on    a    nonresident    defendant    out   of   the    State    "shall    have    the 
same  effect,  and  no  other,  as  an  order  of  publication  duly  executed." 
It  has  been   held  that  the   service  under  this   statute   must  be   made 
fifteen   days  before   the   return    day,   else   it   will   be   invalid.     Raub  v. 
Otterback,   89   Va.   645,   16   S.    E.   933. 

70.  Pennoyer  v.   Neff,   95   U.    S.   714;   Wilson  v.   St.    Louis,   etc.,   R. 
Co.,  108   Mo.  588,  32  Am.   St.   Rep.  624,  and  note;   Galpin  r.   Page,  18 
Wall.    367. 

71.  Hinton  v.   Ins.  Co.,   126   N.   C.   18,   78   Am.   St.    Rep.   636;   Code, 
§  3232;   Pennoyer  v.   Neff,  supra. 


§    192  SERVICE  OF  PROCESS  ON   NATURAL  PERSONS  305 

An  action  is  in  personam  when  its  object  is  to  obtain  a 
personal  judgment  against  the  defendant,  upon  which  a  general 
execution  may  be  awarded  directing  the  collection  of  the  judg- 
ment out  of  any  property  of  the  defendant  anywhere  to  be 
found.  It  is  in  rem  when  it  seeks  to  affect  particular  portions 
of  his  property  only.  After  a  personal  judgment  has  been 
rendered,  generally  nothing  but  the  jurisdiction  of  the  court 
o\er  the  parties  and  the  subject  matter  can  be  inquired  into, 
either  in  the  trial  court  or  elsewhere.72  But  this  always  implies 
that  there  have  been  proper  judicial  proceedings  on  which  to 
found  the  judgment.  "Though  the  court  may  possess  juris- 
diction of  a  cause,  of  the  subject  matter  and  of  the  parties, 
it  is  still  limited  in  its  modes  of  procedure,  and  in  the  extent 
and  character  of  its  judgment.  It  must  act  judicially  in  all 
things,  and  cannot  transcend  the  power  conferred  by  law."  A 
departure  from  established  modes  of  procedure  will  often  render 
a  judgment  void.  If  a  party  be  duly  cited,  but  a  hearing  be 
denied  him,  the  procedure  is  not  judicial,  but  a  mere  arbitrary 
edict  not  entitled  to  be  regarded  as  a  judgment  anywhere.73 

72.  1    Black    on    Judgments,    ch.    13. 

73.  Windsor  v.  McVeigh,  93  U.  S.  274;  Nulton  v.  Isaacs,  30  Gratt. 
726.     An  action  may  be  brought  on  a  judgment,  foreign  or  domestic. 
If   there   was    appearance   to    the    merits,    or   general    appearance,   all 
defects   in   the  process   or  the   manner  of  its   service   are   deemed  to 
have   been   waived   and  the  judgment   is   final   and   conclusive   of  the 
then    rights    of   the    parties.      If   the   judgment   was    obtained   by    de- 
fault,  that   is  without   appearance,   and   the   record   shows   service   of 
process   there   is   conflict   of   authority   as   to   whether   the   defendant 
in  a  domestic  judgment  may  show  that  there  was  in  fact  no  service. 
See  Preston  z:   Kindrick,  3  Va.  Law  Reg.  431,  and  note. 

If  suit  or  action  is  brought  on  a  foreign  judgment  which  was  ob- 
tained  in  the  foreign  court  upon  default  of  appearance  of  the  defend- 
ant, the  defendant  may  show: 

1.  That  the  foreign  court  did  not  have  jurisdiction  of  either  the 
defendant  or  of  the  subject  matter.  The  record  of  the  judgment 
showing  service  of  process  is  not  conclusive  and  may  be  impeached 
by  parol.  Thompson  v.  Whitman,  18  Wall.  457;  Knowles  v.  Gas 
Light  Co.,  19  Wall.  58. 

And  although  the  foreign  law  may  permit  service  on  a  partner  to 
bind  all  members  of  the  firm,  it  can  have  no  extra  territorial  effect, 
and  the  partner  not  served  will  not  be  personally  held  in  another 

—20 


306  VENUE   AND   PROCESS  §    192 

Infants.  It  is  said  by  Prof.  Minor  that  "process  against 
infants  must,  it  is  believed,  be  served  in  like  manner  as  on 
adults."74  On  this  subject,  the  following  views  are  expressed 
in  1  Va.  Law  Reg.  153:  "Whether  service  of  process  on  an 
infant  defendant  is  essential  to  jurisdiction  over  his  person, 
is  a  question  upon  which  there  is  must  diversity  of  opinion. 
In  some  of  the  States  it  is  sufficient  that  a  guardian  ad  Utem 
be  appointed,  and  appear  on  the  infant's  behalf;  while  in  others 
it  is  held  that  service  of  process  is  as  indispensable  as  in  case 
of  adult  defendants.  In  many  States  the  subject  is  regulated 

jurisdiction,  and  even  where  there  was  appearance  for  the  firm  by 
attorney,  if  the  firm  had  been  dissolved  before  such  appearance,  the 
partner  not  served  is  not  bound  unless  he  authorized  the  appear- 
ance. Hall  v.  Lanning,  91  U.  S.  160;  Bowler  v.  Huston,  30  Gratt. 
278,  279. 

2.  Although   the   foreign  court   had  jurisdiction,   it  may  be   shown 
that   it   did   not   act  judicially   and    did   not   afford   the    defendant   an 
opportunity  to  be  heard.     Windsor  v.  McVeigh,  93  U.   S.  274. 

3.  That  the  foreign  court  departed  from  established  modes  of  pro- 
cedure   and  did    not  permit    the  defendant    to  make    defence  in  the 
•form  required  by  law,  e.  g.,  denied  a  jury  trial  where  defendant  was 
entitled  to  it.     Nulton  v.  Isaacs,  30  Gratt.  726. 

4.  Fraud   in   obtaining  the  judgment,   or  any  other  fact   that   will 
show  the  judgment  to  be  void. 

Furthermore,  it  may  be  noted  that  a  judgment  or  decree  may  be 
assailed  even  in  the  same  jurisdiction  in  which  it  is  rendered  on  the 
ground  that  the  proceeding  has  not  been  judicial,  or  the  party  has 
been  deprived  of  some  right  to  which  he  was  entitled.  Independ- 
ently of  statute,  while  the  receiver  of  a  court  may  be  a  quasi-party 
to  the  suit  in  which  he  is  appointed,  the  surety  on  his  bond  is  not, 
and  a  decree  against  such  surety  on  a  rule  is  void  and  may  be  as- 
sailed collaterally.  Thurman  v.  Morgan,  79  Va.  367.  So  likewise,  a 
*  purchaser  at  a  judicial  sale  becomes  a  quasi-party  to  the  suit  in 
which  the  sale  is  made,  and  is  bound  by  all  decrees  made  affecting 
his  rights  as  purchaser,  but  the  surety  on  his  bonds  for  the  pur- 
chase money  is  not  such  party,  and  a  decree  based  on  a  rule  against 
a  surety  is  void,  and  may  be  collaterally  assailed.  Anthony  v.  Ka- 
sey,  83  Va.  338,  5  S.  E.  176.  In  each  of  these  two  cases  the  decree- 
was  held  void  because  the  defendant  was,  by  the  mode  of  procedure 
adopted,  deprived  of  a  jury  trial.  Provision  is  now  made  for  both, 
cases  by  allowing  a  jury  trial  on  the  hearing  upon  the  rule.  Code,. 
§  3402a. 

74.  4  Mm.   Inst.  645. 


§    192  SERVICE  OF  PROCESS  ON   NATURAL  PERSONS  307 


by  statute,  as  it  is  in  Virginia.  The  Virginia  statute  provides 
.that:  'The  proceedings  in  a  suit  wherein  an  infant  or  insane 
person  is  a  party,  shall  not  be  stayed  because  of  such  infancy 
or  insanity,  but  the  court  in  which  the  suit  in  pending,  or 
the  judge  thereof  in  vacation,  shall  appoint  some  discreet  and 
competent  attorney  at  law  as  a  guardian  ad  litem  to  such  in- 
fant or  insane  defendant,  whether  such  defendant  shall  have 
been  served  with  process  or  not."75 

"The  Virginia  court  of  appeals  seems  to  have  been  of  opinion 
that  service  of  process  was  not  necessary,  even  before  this 
statute  was  adopted.76  The  Supreme  Court  of  the  United  States 
holds,  however,  that  no  personal  decree  can  be  had  against  an 
infant,  in  a  federal  court,  without  service  of  process,  if  the 
infant  be  at  the  time  a  non-resident  of  the  State,  though 
process  be  dispensed  with  by  a  statute  of  the  State  in  which 
the  court  is  sitting77 — a  principle  which  is  a  corollary  from 
the  doctrine  of  Pennoyer  v.  Neffy  95  U.  S.  714,  and  the  long 
line  of  subsequent  cases  affirming  it,  that  no  personal  judgment 
can  in  any  case  be  entered  against  a  non-resident,  without  per- 
sonal service  of  process  within  the  State,  unless  he  voluntarily 
appears."78 

It  must  be  borne  in  mind  that  what  was  once  a  mere  matter 
of  state  policy  is  now  a  constitutional  right,  and  that  the 
Fourteenth  Amendment  of  the  United  States  Constitution  pro- 
vides that  no  State  shall  "deprive  any  persons  of  life,  liberty, 
or  property,  without  due  process  of  law,"  and  that  what  con- 
stitutes "due  process  of  law  is,  in  its  last  analysis,  a  question 
for  the  Supreme  Court  of  the  United  States.79  In  view  of  the 
holding  of  the  court  in  the  great  case  of  Pennoyer  v.  Neff, 
supra,  and  of  the  later  case  of  N.  Y.,  etc.,  Ins.  Co.  v.  Banks, 
supra,  it  would  seem  that  if  the  infant  is  a  non-resident  and 

75.  Code,    1887,   §   3255. 

76.  Parker  v.   McCoy,   10   Gratt.   606. 

77.  N.  Y.,  etc.,  Ins.  Co.  v.  Bangs,  103  U.  S.  435. 

78.  1  Va.    Law    Reg.   153.   - 

79.  Section   11   of   the   Virginia   Constitution   also   declares   that    no 
person    shall    be    deprived    of    his    property    without    due    process    of 
law.     This   provision,   as   a   constitutional   guaranty,   appears    for   the 
first  time  in  the  Constitution  of  1902. 


308  VENUE   AND    PROCESS  §    192 

a  personal  judgment  is  sought  against  him,  personal  service 
within  the  jurisdiction  or  voluntary  appearance  is  jurisdictional, 
and  essential  to  the  validity  of  the  judgment.  If  no  judgment 
is  sought  against  the  non-resident  infant,  but  it  is  only  sought 
to  affect  his  interest  in  property  within  the  jurisdiction  of  the 
State  the  rule  would  be  otherwise.  If  the  infant  is  a  resi- 
dent of  the  State  and  a  personal  judgment  is  sought  against 
him,  personal  service  of  process  upon  him  if  he  is  not  married 
(no  provision  is  made  for  a  substituted  service)  may  be  neces- 
sary to  constitute  "due  process,"  but  there  is  much  room  for 
doubt  as  to  this  proposition  as  he  is  already  subject  to  the 
general  jurisdiction  and  sovereignty  of  the  State,  and  the  stat- 
ute not  only  provides  for  the  appointment  of  a  guardian  ad  lit  em 
who  shall  faithfully  represent  the  infant,  but  also  that  "it  shall 
be  the  duty  of  the  court  to  see  that  the  estate  of  such  defend^ 
ant  is  so  represented  and  protected."  At  all  events,  the  only 
safe  course  to  pursue  where  a  personal  judgment  is  sought 
against  an  infant  is  to  secure  proper  personal  service  of  process 
upon  him. 

In  West  Virginia  it  is  provided  by  statute  that  after  the 
appointment  of  a  guardian  ad  litem  "no  process  need  be  served 
on  such  infant  or  insane  person."80  This  statute  has  been  up- 
held as  sufficient  to  take  the  place  of  personal  service  on  resi- 
dent infants  in  cases  seriously  affecting  their  property  rights, 
though  no  personal  judgments  were  sought  against  them.  It 
was  further  said  that  it  was  necessary  for  the  guardian  ad 
litem  to  signify  his  acceptance  by  filing  an  answer.81 

The  failure  to  appoint  a  guardian  ad  litem  to  defend  the 
infant  is  generally  held  to  be  a  fatal  defect.82  Moreover,  as 
the  guardian  ad  litem  appointed  is  not  obliged  to  accept  the 
appointment,  it  is  said  that  it  is  necessary  for  him  to  signify 
his  acceptance  of  the  trust  by  an  answer  filed  in  the  cause.83 

80.  W.   Va.    Code    (1906),    §    3833. 

81.  Alexander   v.    Davis,   42    W.   Va.    465,   26    S.    E.   291;    Ferrell   v. 
Ferrell,   53   W.  Va.  515,  44  S.   E.   188. 

82.  Turner  v.  Barraud,  102  Va.  324,  46  S.  E.  318;  Langston  v.  Bas- 
sette,   104  Va.   47,   51   S.    E.   218;   Westmeyer   7'.    Gallencamp,   154   Mo. 
28,   77   Am.   St.    Rep.   747  and   cases   cited   in   note   last   above. 

83.  Alexander   v.    Davis,   supra. 


§    193  SERVICE   OF   PROCESS   ON    CORPORATIONS  309 

Insane  Persons.  The  same  statute  in  Virginia  which  provides 
for  a  guardian  ad  litein  for  infants,  provides  for  a  like  guard- 
ian for  insane  persons.  If  action  is  brought  before  the  de- 
fendant has  been  adjudged  it  is  generally  held  that  process 
must  be  served  on  the  defendant.  After  adjudication,  actions 
are  generally  brought  against  the  committee  or  other  custodian 
on  the  insane  person  under  statutes  authorizing  the  same.  In 
Virginia  "in  a  suit  to  subject  the  lands  of  a  lunatic  to  the 
payment  of  his  debts,  the  lunatic  is  not  a  necessary  party, 
when  he  has  a  committee  clothed  with  absolute  authority  to 
sue  and  be  sued  with  respect  to  such  estate.  In  a  proceeding 
affecting  the  property  rights  of  an  insane  person,  it  is  the  duty 
of  the  court,  if  he  have  no  committee,  to  appoint  a  guardian 
ad  lite  in  to  represent  and  protect  his  interest,  but  if  he  has 
a  committee  the  appointment  of  a  guardian  ad  litem  is  wholly 
unnecessary,  except  only  where  there  is  a  conflict  of  interest 
between  the  committee  and  the  lunatic."84 

If,  however,  a  proceeding  be  taken  to  determine  the  question 
of  the  sanity,  or  insanity  of  any  person,  it  is  believed  that 
the  insane  person  is  entitled  to  notice  and  an  opportunity  to 
be  heard,  and,  if  denied,  the  proceedings  are  held  in  some  States 
to  be  void,  in  others  voidable  only.85 

The  right  to  sue  court  rcceiz'crs  has  been  heretofore  dis- 
cussed.86 It  will  be  recalled  that  it  is  no  longer  necessary  to 
obtain  the  consent  of  the  court  of  their  appointment  in  order 
to  maintain  an  action  against  them.  Provision  is  made  in  Vir- 
ginia for  service  of  process  on  the  receivers,  or  their  agents, 
and  if  none  in  the  county  or  corporation  wherein  the  action 
is  commenced,  then  for  the  publication  of  the  process  as  in 
case  of  actions  against  corporations.87 

§   193.    Service  of  process  on  corporations. 

At  common  law  the  method  of  service  was  on  the  president 

84.  Howard  r.  Landsberg,  108  Va.  161,  60  S.  E.  769. 

85.  Code,  §  1669;  Hess  v.  Gale,  93  Va.  467,  25   S.   E.  533;   Howard 
v.  Landsberg,  supra;  Evans  r.  Johnson,  39  W.  Va.  303,  19  S.  E.  624; 
Karnes   r.   Johnson,   58   W.   Va.   595,   52   S.    E.    658;    16   Am.    &    Eng. 
Encl.  Law  (2nd  Ed.)   567,  and  cases  cited. 

86.  Ante,    §    53. 

87.  Code,  §   3226. 


310  VENUE  AND   PROCESS  §    193 

or  other  chief  officer  of  the  corporation,  personally,88  but  in 
all  of  the  States  statutes  have  been  enacted  prescribing  the  time 
and  manner  of  service  on  both  domestic  and  foreign  corpora- 
tions, and  these  statutes  must  be  consulted  as  to  matters  of 
detail.  While  there  is  some  variation  in  the  details,  there 
is  a  very  marked  similarity  in  the  general  method  of  service. 
As  to  domestic  corporations  they  generally  provide  for  service 
on  certain  enumerated  officers,  and,  if  there  be  none,  upon 
agents,  and  if  no  agents,  then  publication  of  some  kind, 
or  by  publication  and  notice  sent  out  of  the  State  or  some  like 
provision;  and  as  to  foreign  corporations,  they  usually  provide 
for  service  on  agents,  or,  if  none  be  found,  by  some  species  of 
publication.  In  Virginia,  the  service  of  process  on  corporations 
is  regulated  by  §§  3225  and  3227  of  the  Code,  hereinbefore 
quoted  in  the  margin,  and  is  wholly  separate  and  distinct  from 
the  method  of  service  on  natural  persons,  and  the  mode  of 
procedure  against  foreign  corporations  is  not  altogether  the 
same  as  that  prescribed  for  domestic  corporations.  Federal 
courts,  in  the  absence  of  an  act  of  Congress,  must  follow  the 
State  statute  as  to  the  manner  of  service  of  process  in  actions 
at  law,  but  not  in  equity.89 

Domestic  corporations.  Section  3225  of  the  Virginia  Code 
enumerates  certain  officers,  other  than  mere  agents,  on  whom 
service  may  be  made.  There  is  no  preference  among  these, 
and  service  on  any  one  of  the  particular  class  is  sufficient,  and 
the  return  need  not  make  any  reference  to  the  others.90  If 
none  of  the  enumerated  officers  can  be  found  in  the  county  or 
corporation  wherein  the  action  is  commenced  (having  residence 
or  place  of  business  there  as  provided  by  §  3227)  then  the 
plaintiff  may  either  (1)  have  the  process  served  on  any  agent 
residing,  etc.,  in  that  county  or  corporation,  or  (2)  if  the  action 
be  against  a  railroad,  canal,  express,  navigation,  turnpike,  tele- 

88.  19   Encl.   PI.   &  Pr.  652. 

89.  Amy    v.    Watertown    No.    1,    130    U.    S.    301;    United    States    v. 
Beli  Tel.  Co.,  29  Fed.  17;  19  Encl.  PI.  &  Pr.  673. 

90.  Special  provision  is  made  as  to  banks  and  domestic  insurance 
companies.      Process   against   a   bank   must   be   served   on   an    officer, 
and    not     on    an    agent,    and    there    can    be    no    order    of    publication 
against   a   domestic  insurance    company.     Sec.   3225. 


§    193  SERVICE   OF   PROCESS   ON    CORPORATIONS  311 

graph  or  telephone  company,  or  to  recover  for  a  tort,  or  where 
another  defendant  has  been  served  in  the  county  or  corporation, 
he  may  send  the  process  out  of  the  county  or  corporation  and 
have  it  served  on  such  officer  in  the  county  or  corporation 
wherein  he  resides,  etc.  (3)  If  there  be  no  agent  in  the  county 
or  corporation  in  which  the  action  was  commenced  upon  whom 
there  can  be  such  service,  then  and  then  only  may  the  plain- 
tiff, upon  affidavit  of  that  fact,  have  the  process  published  once 
a  week  for  four  successive  weeks,  and  make  such  service  the 
basis  of  a  personal  judgment  against  the  defendant.  It  will 
be  observed  that  there  can  be  no  service  on  an  agent  of  a 
domestic  corporation,  if  service  can  be  had  on  any  of  the 
enumerated  officers  (fulfilling  the  conditions  of  the  statute) 
in  the  county  or  corporation  in  which  the  action  is  commenced, 
and  there  can  be  no  publication  of  process  if  there  be  in  the 
county  or  corporation  any  agent  residing  or  having  his  place 
of  business  there  on  whom  there  can  be  service.  But  even 
where  publication  is  permissible,  "service  of  process  on  the  late 
president  of  a  corporation  which  has  ceased  to  exist  is  suffi- 
cient, though  the  process  might  have  been  served  by  publication, 
as  prescribed  by  §  1103  of  the  Code.  The  latter  method  is 
simply  cumulative."91 

The  word  "agent"  would  probably  exclude  a  mere  "servant" 
in  cases  of  this  kind,  but  the  Virginia  statute92  declares:  "The 
term  'agent,'  as  employed  in  each  of  the  preceding  sections, 
shall  be  construed  to  include  a  telegraph  operator,  telephone 
operator,  depot  or  station  agent  of  a  railroad  company,  and 
toll-gatherer  of  a  canal  or  turnpike  company." 

Process  against  or  notice  to  a  corporation  can  only  be  served 
on  an  officer  or  agent  of  the  corporation,  under  the  Virginia 
statute,  in  the  county  or  corporation  "wherein  he  resides,  or  his 
place  of  business  is,  or  the  principal  office  of  the  corporation 
is  located,"  and  the  officer's  return  must  show  this.93  If  the 
action  be  brought  under  §  3215  the  process  cannot  be  directed 
to  the  officer  of  any  other  county  or  corporation  than  that 

91.  Richmond,  etc.,  R.  Co.  v.  N.  Y,  etc.,  R.  Co.,  95  Va.  386,  28  S. 
E.   573. 

92.  Code,    §    3227. 

93.  Code,    §    3227. 


312  VENUE   AND   PROCESS  §    193 

from  which  it  issues,  unless  the  case  come  within  some  one 
of  the  exceptions  named  in  §  3220,  but  no  matter  to  whom 
directed,  it  must  be  served  as  above  stated1.  The  service  on 
an  officer  or  agent  of  a  corporation  must  be  on  him  in  person, 
and  cannot  be  in  any  of  the  substituted  methods  provided  by 
§  3207  of  the  Code.  It  cannot  be  on  his  wife,  or  a  member 
of  his  family,  nor  by  posting.  This  section  (3207)  is  made 
applicable  to  service  on  natural  persons  by  §  3224  of  the  Code, 
but  the  latter  section  expressly  excepts  corporations  and  pro- 
vides "that  when  such  process  is  against  a  corporation,  the 
mode  of  service  shall  be  as  prescribed  by  the  following  section," 
and  the  section  providing  for  service  on  an  officer  or  agent 
declares  that  it  "shall  be  by  delivering  to  him"  a  copy  of  the 
process,  and  makes  no  provision  for  any  kind  of  substituted 
service.94  Usually  service  on  a  de  facto  officer  has  the  same 
effect  as  if  he  were  also  an  officer  de  jure.95 

Whether  a  judgment  by  default  can  be  taken  on  service  by 
publication  against  a  domestic  corporation  which  is  a  going  con- 
cern, with  a  known  place  of  business  within  the  State,  without 
any  effort  to  serve  on  an  officer  or  agent  of  the  corporation 
is  a  matter  of  serious  doubt.  The  ground  of  this  doubt  is 
the  constitutionality  of  the  act  allowing  service  by  publication 
only.  Both  the  State  and  federal  constitutions96  forbid  the 
taking  of  property  without  "due  process  of  law,"  and  the  ques- 
tion is  whether  this  method  of  procedure  constitutes  "due 
process."  It  has  been  repeatedly  held  that  a  corporation  is  a 
person  within  the  meaning  of  the  constitution,  and  consequently 
is  entitled  to  due  process  of  law.97  And  while  the  legislature 
may  undoubtedly  authorize  constructive  service  upon  corpora- 
tions, the  method  adopted  should  be  such  as  is  reasonably  calcu- 
lated to  bring  notice  home  to  some  of  the  officers  or  agents  of 
the  corporation,  thus  securing  an  opportunity  to  be  heard  and 
to  make  defence.98  The  right  to  take  a  personal  judgment  upon 

94.  Code,   §  3227. 

95.  19    Encl.    PI.    &    Pr.    657. 

96.  Va.    Constitution,    1902,    §    11;    U.    S.    Constitution,    Amendment 
XIV. 

97.  Smith   v.   Ames,   169   U.   S.   466,   522,   and   cases   cited. 

98.  Pinney   v.    Prov.    Loan   Co.,   106   Wis.   396,   80   Am.   St.    Rep.   41, 
50   L.    R.   A.   577,   and   note. 


§    193  SERVICE   OF    PROCESS   ON    CORPORATIONS  313 

service  by  publication  and  mail  has  been  recognized  in  several 
cases,"  but  whether  judgment  by  default  may  be  taken  on 
publication  alone  when  the  defendant  has  a  known  place  of 
abode,  with  officers  and  agents  upon  whom  process  can  be  easily 
served,  without  any  effort  to  make  such  service,  is  by  no  means 
free  from  doubt.  It  may  be,  as  stated  by  Mr.  Justice  Field,, 
"that  a  State,  on  creating  corporations  or  other  institutions  for 
pecuniary  or  charitable  purposes,  may  provide  a  mode  in  which 
their  conduct  may  be  investigated,  their  obligations  enforced,  or 
their  charters  revoked,  which  shall  require  other  than  personal 
service  upon  their  officers  or  members,  and  parties  becoming 
members  of  such  corporations  or  institutions  would  hold  their 
interest  subject  to  the  conditions  prescribed  by  law,"  yet  it  is 
equally  true  that  the  State  cannot  deprive  the  corporation  of 
due  process  of  law.  The  State  Corporation  Commission  may 
charter  corporations,  and  provide  a  mode  in  which  their  conduct 
may  be  investigated,  their  obligations  enforced,  or  their  charters 
revoked,  but  it  cannot,  by  charter  provisions,  or  otherwise,  nor 
can  the  legislature,  deprive  them  of  due  process  of  law  for 
the  protection  of  their  property.  What  constitutes  "due  process" 
is  a  judicial  question,  to  be  determined  in  the  last  resort  by 
the  Supreme  Court  of  the  United  States,  and  while  great 
respect  will  be  paid  to  the  legislative  construction  of  the  phrase, 
and  what  the  legislature  regards  as  constituting  due  process, 
the  question  is  at  last  one  for  the  courts,  and  the  legislature 
cannot  declare  anything  it  pleases  to  amount  to  due  process. 
The  defendant  is  entitled  to  reasonable  notice,  and  a  reasonable 
opportunity  to  be  heard.  But  the  legislature  is  not  the  sole 
judge  of  the  kind  of  notice  to  which  the  defendant  is  entitled. 
The  kind  of  notice  given  is  of  the  very  essence  of  due  process, 
and  its  sufficiency  is  the  very  question  the  courts  are  to  deter- 
mine. As  said  by  the  Court  of  Appeals  of  New  York,1  "the 
legislature  is  not  vested  with  a  power  to  arbitrarily  provide 
that  any  preceding  it  may  choose  to  declare  such  shall  be  re- 
garded as  due  process  of  law."  On  this  subject,  the  authorities 
seem  to  hold  that  "the  law  of  the  land  does  not  mean  merely 

99.  Town   of   Hinckley  v.   Kettle   River   R.   Co.,  225   111.   197,  80   N. 
E.   109,  116  Am.  St.  133. 

1.  Colon  v.  Lisk,  153  N.  Y.  188,  47  N.  E.  302. 


314  VENUE  AND  PROCESS  §    193 

an  act  of  the  legislature,  for  such  a  construction  would  abro- 
gate all  restrictions  on  legislative  power."2 

It  is  not  claimed  that  the  State  cannot  provide  for  substituted 
service  of  process  on  corporations,  nor,  in  proper  cases,  for 
service  by  publication.  The  specific  claim  is  that:  Service  by 
publication  as  a  basis  for  a  personal  judgment  is  not  "due 
process"  as  against  a  domestic  corporation,  which  is  a  going 
concern  with  a  known  place  of  business,  where  no  effort  is 
made  or  required  to  serve  process  on  its  officers  or  agents. 
Service  by  publication  under  such  circumstances  does  not  evince 
a  bona  fide  effort  to  give  notice  to  the  defendant,  and,  as 
said  in  another  case,3  where  service  was  made  on  the  State 
Register  of  Deeds,  "such  service,  if  hel-d  to  be  effectual,  would 
be  well  calculated  to  conceal  from  the  officers  and  agents  of 
the  corporation  the  fact  that  such  an  action  had  been  com- 
menced," and  hence  a  statute  which  authorizes  such  a  service 
is  invalid.  It  has  been  held,  however,  in  Florida  and  in  Vir- 
ginia, that  a  'personal  judgment  may  be  taken  against  a  domestic 
corporation  based  upon  service  by  publication  only,  where  there 
is  no  officer  or  agent  of  the  corporation  in  the  county  on 
whom  process  may  be  served,  and  that  such  publication  does 
constitute  due  process,  within  the  meaning  of  the  constitution.4 

Foreign  Corporations.  Foreign  corporations  are  not  citizens 
within  the  meaning  of  the  privilege  and  immunity  clause  of 
the  federal  constitution.  They  are  recognized  in  foreign  States 
only  by  comity.5  The  right  to  do  business  in  the  State  rests 
absolutely  in  the  discretion  of  the  legislature.  It  may  impose 
such  terms  as  it  pleases,  whether  they  be  reasonable  or  unrea- 
sonable, and  may  exclude  them  altogether.  It  is  said,  how- 
ever, that  there  are  some  constitutional  limitations  upon  this 

2.  10  Amer.   &  Eng.   Encl.  Law   (2nd   Ed.),  292,  and   cases   cited. 

3.  Pinney  v.   Prov.   Loan   Co.,   106   Wis.   396,   82   N.   W.   308,   50   L. 
R.   A.   577. 

4.  Clearwater    Mercantile    Co.    v.    Roberts    (Fla.),    40    South.    436; 
Ward    Lumber   Co.  v.   Henderson-White,    107   Va.   626,   59   S.    E.   476. 
On  the  other  hand,  it  has  been  held  that  a  personal  judgment  can- 
not be  taken  against  a  private  person  upon   such  service.     Bardwell 

•v.  Collins,  44  Minn.  97,  20  Am.  St.  547,  and  note;  Bear  Lake  City  v. 
Bud^e,  9  Idaho  703,  108  Am.  St.   Rep.  179. 

5.  Paul  v.  Va.,  8  Wall.  168. 


SERVICE   OF   PROCESS   ON    CORPORATIONS  315 

rule.  They  have  been  expressed  as  follows:6  "But  the  only 
limitation  on  the  right  of  a  State  to  impose  restrictions  upon 
the  rights  of  foreign  corporations  to  do  business  within  the 
domestic  State,  so  far  as  the  federal  constitution  is  concerned, 
are  that  the  State  cannot  exclude  from  its  limits  a  corporation 
engaged  in  interstate  or  foreign  commerce,7  that  it  cannot  re- 
quire foreign  corporations  not  engaged  in  interstate  commerce, 
as  a  prerequisite  to  doing  business  therein,  to  give  its  own 
residents  a  prior  security  on  ihe  assets  of  the  corporation 
within  the  State,8  and  that  it  cannot  impose  restrictions  on  a 
corporation  in  the  employ  of  the  general  government."9  Stat- 
iites.  however,  which  require  an  agreement  not  to  remove  causes 
to  the  federal  courts,  have  generally  been  declared  to  be  uncon- 
stitutional. But  notwithstanding  their  unconstitutionality,  if  the 
agreement  is  violated,  it  has  been  held  that  the  State  may  for 
that  reason,  and  that  reason  only,  revoke  the  license  to  do 
business  in  the  State.10  This  is  said  to  result  from  its  right 

6.  13   Am.    Eng.   End.   Law    (2nd    Ed.)    861. 

7.  "Pensacola  Tel.  Co.  v.  West.  Union  Tel.  Co.,  96  U.  S.  1;  Fritts 
v.  Palmer,  132  U.  S.  282;   Ex  parte  Stockton,  33  Fed.  Rep.  95;  Peo- 
ple v.  Wemple,  131  N.  Y.  64,  27  Am.  St.  Rep.  542;  Huffman  v.  West- 
ern  Mort,   etc.,   Co.,   13   Tex.   Civ.   App.   169.     For  a   full   discussion 
of  this    subject,   see   the   title    Interstate   Commerce." 

8.  "Blake  v.  McClung,  172  U.  S.  239      See  infra,  this  section,  Stat- 
utes Requiring  Preferences  of  Resident  Creditors   in  Distribution  of 
Assets." 

9.  "Stockton   v.   Baltimore,   etc.,   R.   Co.,   32   Fed".   Rep.   9;   Pembina 
Consol.   Silver   Min.,   etc.,   Co.  v.   Pennsylvania,   125   U.   S.   186;    New 
Orleans,  etc.,  Packet  Co.  v.  James,  32  Fed.  Rep.  21;  People  v.  Wem- 
ple, 131  N.  Y.  64,  27  Am.  St.  Rep.  542;  Huffman  v.  Western  Mortg., 
etc..   Co.,   13   Tex.   Civ.  App.   169. 

"Illustration. — In  the  pursuit  of  business  authorized  by  the  govern- 
ment of  the  United  States  and  under  its  protection  the  corporations 
of  other  States  cannot  be  prohibited  or  obstructed  by  any  State.  If 
Congress  should  employ  a  corporation  of  ship-builders  to  con- 
struct a  man-of-war,  they  would  have  the  right  to  purchase  the  nec- 
essary timber  and  iron  in  any  State  in  the  Union,  Stockton  v.  Bait., 
etc.,  R.  Co.,  32  Fed.  Rep.  14;  without  the  permission  and  against  the 
prohibition  of  the  State.  Pembina  Consol.  Silver  Min.  Co.  v.  Penn- 
sylvania. 125  U.  S.  186." 

10.  Doyle  v.  Cont.  Ins.  Co.,  94  U.  S.  535.     But  see  Cable  v.  U.  S. 
Life   Ins.  Co.,   191  U.   S.  288,   307,  and  cases   cited,   and   Herndon  v. 
Chicago   R.   Co.,  218  U.   S.   135,   158,  and  cases  cited. 


316  VENUE;  AND  PROCESS  §  195 

to  exclude  altogether.  The  reason  for  the  exclusion  cannot  be 
inquired  into. 

When  a  State  has  once  prescribed  terms  upon  which  a  for- 
eign corporation  may  do  business,  the  doing  of  business  within 
the  State  is  deemed  an  acceptance  of  the  terms  prescribed. 
But  it  is  often  a  nice  question  as  to  what  consti- 
tutes doing  business  within  the  State.  It  is  not  within  the 
purview  of  these  notes  to  go  into  this  subject.11  Attention, 
however,  is  called  to  the  fact  that  a  single  act  of  business 
is  not  considered  doing  business  in  the  State,12  and  that  sales. 
by  drummers  or  traveling  salesmen  who  simply  take  orders  are 
not  within  the  purview  of  the  statute,  and  only  those  corpora- 
tions are  deemed  to  migrate  and  do  business  in  another  State 
who  transact  their  business  through  resident  or  local  agents. 
To  prohibit  sales  by  drummers  would  be  an  interference  with 
interstate  commerce.  The  business  of  insurance,  however,  is 
not  commerce.13 

The  Virginia  statute  on  the  subject  of  service  of  proc- 
ess on  foreign  corporations,  which  has  been  hereinbefore 
quoted  in  the  margin,14  provides  for  service  on  any  agent  of 
the  corporation,  or  upon  any  person  declared  by  the  laws  of 
the  State  to  be  an  agent,  and,  under  certain  conditions,  by 
publication;  and  it  is  provided  by  statute,15  that  the  term  agent 
shall  be  construed  to  include  a  telegraph  operator,  telephone 
operator,  depot  or  station  agent  of  a  railroad  company,  and 
toll-gatherer  of  a.  canal  or  turnpike  company.  The  language 
of  the  statute  is  very  comprehensive.  It  is  "on  any  agent." 
The  object  of  service  of  process  is  to  give  notice  to  the  party 
to  be  affected  so  as  to  enable  him  to  make  defence,  and  there 
have  been  many  cases  discussing  the  subject  as  to  whether  the 

11.  A  collection  of  the  authorities  will  be  found  in  13  Am.  &  Eng. 
Encl.  Law  (2nd  Ed.)  869  ff. 

12.  Goldsberry   v.    Carter,    100    Va.    438,    41    S.    E.    858,    8    Va.    Law- 
Reg.  279  and  note;  Cooper  Man.  Co.  v.  Ferguson,  113  U.  S.  727.     See 
also  note,  85  Am.  St.  Rep.  914  ft. 

13.  1    Va.    Law    Reg.    306,    and    authorities    cited;    13    Am.    &    Eng. 
Encl.   Law    (2nd   Ed.)    869. 

14.  Note    to    §    186,    ante. 

15.  Code,    §    3227. 


§  193        SERVICE  OF  PROCESS  ON  CORPORATIONS          317 

agent  served  was  such  an  agent  as  is  contemplated  by  law.16 
It  would  seem  that  the  service  should  be  such  as  would  be 
reasonably  expected  to  accomplish  the  purpose  intended,  and 
that  ordinarily  service  upon  subordinate  agents  or  those  in  no 
way  connected  with  the  subject  of  litigation  and  having  no 
knowledge  of  the  defendant's  business,  or  upon  servants  or 
•employees,  would  not  be  sufficient.  A  foreign  corporation  be- 
fore being  subjected  to  a  personal  judgment  is  entitled  to  such 
service  as  amounts  to  "due  process  of  law"  and  as  is  not  un- 
reasonable or  contrary  to  the  principles  of  natural  justice.17 

Officers  of  foreign  corporations  are  not  supposed  to  reside  in 
Virginia,  and  consequently  the  Virginia  statute  makes  no  pro- 
vision for  serving  process  on  such  officers.  The  provision  is  for 
service  on  ( 1 )  any  agent  of  such  corporation,  or  any  person  de- 
clared by  the  laws  of  this  State  to  be  an  agent,  and  if  there  be  no 
such  agent  in  the  county  or  corporation  in  which  the  case  is  com- 
menced, then  (2)  the  process  is  to  be  served  by  publication. 
Nearly  all  the  States,  including  Virginia,  require  non-resident 
corporations  to  designate  some  person  in  the  State  to  represent 
the  corporation,  upon  whom  service  may  be  made.18  The  proc- 
ess may  be  served,  as  in  case  of  other  defendants,  either  by  an 
officer,  or  by  a  private  person  who  makes  affidavit  to  the  return. 
As  in  case  of  domestic  corporations,  where  service  is  on  the 
agent,  the  service  must  be  personal  and  cannot  be  by  delivering 
to  the  agent's  wife  or  a  member  of  his  family,  or  by  posting,  and 
it  must  also  be  served  in  the  county  or  corporation  wherein  the 
agent  resides  or  his  place  of  business  is,  or  the  chief  office  of 
the  company  is  located,  and  the  return  must  show  this. 

Sections  3214  and  3215  of  the  Code  fix  the  venue  of  all  ac- 
tions in  Virginia.  If  the  process  is  such  as  may,  under  §  3220, 

16.  Mutual   L.   Ins.   Co.  v.   Spratley,   172  U.   S.   602;  note,  23   L.   R. 
A.   490. 

17.  Note   to    Pinney  v.   Prov.   Ins.   Co.,   50   L.   R.   A.   589,  594;    Mu- 
tual  L.   Ins.   Co.   r.   Spratley,   supra;   Monographic   Note,   85   Am.   St. 
Rep.   905   ff.      See   particularly   85    Am.    St.    Rep.   929,    citing   cases    to 
the    effect    that    service    on    any    agent,    or    even    on    an    employee    is 
sufficient. 

18.  Code.  §  1104.     This  applies  only  to  companies  "doing  business 
in  this  State,"  or  intending  to  do  business   here. 


318  VENUE  AND  PROCESS  §    193 

be  sent  out  of  the  county  in  which  the  action  is  brought,  then  the 
process  may  be  served  on  any  agent  of  the  foreign  corporation 
anywhere  in  the  State,  provided  the  service  be  on  the  agent  in 
the  county  or  corporation  in  this  State,19  wherein  he  resides  or 
his  place  of  business  is,  or  the  chief  office  of  the  company  is  lo- 
cated. It  has  been  held  under  these  sections  that  where  an  ac- 
tion is  brought  against  a  foreign  corporation  doing  business  in 
this  State,  to  recover  damages  for  a  wrong  in  the  county  where 
the  cause  of  action  arose,  the  process  commencing  the  action 
may  be  sent  to  the  officer  of  the  county  or  corporation  in  which 
the  statutory  agent  of  such  foreign  corporation  resides,  and  that 
service  upon  such  agent  there  would  have  the  same  effect  in 
bringing  such  foreign  corporation  into  court  as  if  it  were  a  home 
corporation  and  the  statutory  agenf  were  its  chief  officer  residing 
there.20  As  a  necessary  corollary  of  this  holding,  it  was  in  ef- 
fect also  held,  obiter,  that  a  foreign  corporation  may  be  sued  at 
the  place  of  residence  of  its  statutory  agent,  and  a  personal  judg- 
ment rendered  against  it  wherever,  if  it  had  been  a  domestic 
corporation,  suit  might  have  been  brought  where  the  president 
or  chief  officer  resided.  This  accords  with  what  had  been  pre- 
viously held  that  "where  none  of  the  grounds  of  jurisdiction 
enumerated  in  §§  3214  and  3215  exist,  an  action  against  a  for- 
eign corporation  must  be  brought  where  the  statutory  agent  of 
the  corporation  resides.  It  cannot  be  brought  in  another  county 
or  city  and  have  process  sent  to  the  county  or  city  in  which  such 
statutory  agent  resides."21  If  no  agent  of  the  corporation  be 
found  in  the  county  or  corporation  in  which  the  action  is  com- 
menced, the  process  may  be  served  by  order  of  publication,  but 
the  statute  does  not  undertake  to  say  what  is  the  effect  of  such 
order  of  publication.  If  it  is  a  proceeding  in  rem,  the  order  of 
publication  is  a  valid  mode  of  giving  notice,  but  it  must  not  be 
supposed  that  a  personal  judgment  can  be  taken  against  a  for- 
eign corporation  on  an  order  of  publication.  If  the  proceeding 
is  in  rem,  or  quasi  in  rem,  the  property  of  the  foreign  corpora- 
tion may  be  attached,  and  the  judgment  of  the  domestic  State 

19.  Dillard  v.  Cent.  Va.   I.  Co.,  82  Va.   734,  1   S.   E.   124. 

20.  Carr  v.   Bates,   108   Va.   371,  61   S.    E.   754. 

21.  Deatrick  v.  State  Ins.  Co.,  107  Va.  602,  59  S.   E.  489. 


§    193  SERVICE   OF   PROCESS    ON    CORPORATIONS  319 

will  be  valid  to  the  extent  of  the  property  attached,  but  no  fur- 
ther. The  owner  of  property  is  supposed  to  be  in  possession  of 
it,  and  when  the  property  is  seized  he  is  presumed  to  have  notice 
of  that  fact,  either  personally  or  through  the  medium  of  the 
agent  or  servant  in  possession.  The  proceeding,  however,  must 
be  in  rein.  A  foreign  corporation  by  doing  business  in  the  State 
submits  to  the  jurisdiction  of  the  State  at  least  by  implication, 
and  agrees  to  be  bound  by  such  laws  of  the  domestic  State  as 
are  not  unreasonable  or  in  contravention  of  natural  justice.  It 
does  not  surrender  its  right  to  "due  process  of  law."  There  can- 
not be  a  personal  judgment  against  a  foreign  corporation  which 
does  not  submit  to  the  jurisdiction  of  the  court  except  upon  per- 
sonal service  of  process  or  its  equivalent,  that  is,  service  on  some 
agent  or  officer  of  the  corporation  in  the  State  in  which  the  ac- 
tion is  brought.  In  the  absence  of  such  service  or  submission, 
a  personal  judgment  by  default  against  a  foreign  corporation  is 
a  mere  nullity.  It  is  void  everywhere,  and  may  be  collaterally 
assailed.22  If  a  foreign  corporation  does  not  do  business  in  the 
State,  the  decided  weight  of  authority  is  that  process  cannot  be 
served  on  one  of  its  officers  casually  in  the  State,  or  enticed 
there.  This  is  the  doctrine  of  the  federal  courts  and  of  most  of 
the  State  courts,  but  it  is  said  that  a  different  rule  prevails  in 
Louisiana,  Michigan,  Minnesota,  Nebraska,  New  York  and 
North  Carolina,  under  the  peculiar  phraseology  of  their  stat- 
utes.23 If  the  foreign  corporation  is  not  doing  business  in  the 
State,  no  personal  judgment  can  be  rendered  against  it  either 
upon  (1)  service  on  an  officer  casually  in  the  State,  or  (2)  upon 
an  order  of  publication,  or  (3)  service  on  a  State  officer  desig- 

22.  Pennoyer  r.   Xeff,  95  U.  S.   714;   Brooklyn  v.   Life   Ins.  Co.,  90 
U.   S.   370;    St.    Clair  v.   Cox,   106   U.    S.   350;    Mutual    L.    Ins.   Co.   v. 
Spratley,  172  U.  S.  602,  and  numerous  other  cases;   Lile's   Notes  on 
Corp.   348,   350;   Lafayette   Ins.   Co.   v.   French,   18   How.   404,  407. 

23.  13  Am.   &   Eng.   Encl.  of  Law    (2nd  Ed.)   893,  and  cases  cited; 
St.  Clair  t-.   Cox,  106  U.   S.  350;   Fitzgerald  v.   Fitzgerald,   137  U.   S. 
98;  Aldneh  v.  Anchal  Coal  Co.   (Oregon),  41  Am.  St.  Rep.  831,  and 
note;    Lile's    Notes    on    Corporations,    327,    328;    Goldey   v.    Morning 
New?.   156  U.   S.   518;   19    Encl.   PI.   &   Pr.   682-684  and   notes;   Jester 
v.  Balto.  Steam  Packet  Co.,  131  N.  C.  54,  42  S.  E.  447;  Monographic 
Note,  85  Amer.  St.  Rep.  905. 


320  VENUE   AND   PROCESS  §    193 

nated  by  statute,  or    (4)   even  upon  a  director  resident  in    the 
State.24 

Publication  of  Process.25  The  subject  of  service  of  process  by 
publication  has  already  been  discussed  to  some  extent  hereinbe- 
fore, but  a  few  additional  observations  may  be  made  on  the 
subject.  It  .has  already  been  noticed  that  the  Virginia  court 
recognizes  as  valid  a  service  by  publication  against  a  domestic  cor- 
poration, without  effort  to  effect  service  on  an  officer  or  agent  at 
defendant's  known  place  of  abode,  and  that  upon  such  service  a 
personal  judgment  may  be  rendered.  It  has  also  been  noticed 
that  no  personal  judgment  can  be  rendered  against  a  foreign  cor- 
poration doing  business  in  the  state  upon  a  mere  publication  of 
process.  In  proceedings  in  rem  the  seizure  of  the  res  brings  it 
into  the  custody  of  the  court,  but  does  not  confer  jurisdiction  to 

24.  Note,    50    L.    R.    A.    577;    Cella    Commission    Co.    v.    Bohlinger 
(C.   C.  A.)   8   L.   R.  A.    (N.   S.)    537,   and  note;   Conley  v.   Mathieson, 
Alkali  Works,  190  U.  S.  406. 

25.  In    Virginia    the    "order    of   publication"    against    a    corporation 
consists    in    simply    publishing    the    process    or    summons    for    four 
successive   weeks   in    some    newspaper    published    in    this    State.      No 
posting  is   required.     The   summons   is   in   the   usual   form,   and  noti- 
fies the  defendant  when  and  where  it  is  to  appear,  and,  in  the  most 
.general   way,    of  the   nature    of   the    action.     This    is    essentially    dif- 
ferent from  "the  order  of  publication"  against  natural  persons.     The 
subject  is   discussed  at  length  in  2  Va.   Law   Reg.  545,  548,   and  the 
•essential   differences   between   the   two   are  there   summarized   as   fol- 
lows: 

Against  Corporations.  1.  The  process  in  the  suit  is  alone  pub- 
lished. 2.  This  process  is  in  the  ordinary  form  of  a  summons  to 
commence  a  suit.  3.  The  defendant  is  summoned  to  a  certain  rule 
•day.  4.  The  publication  is  to  be  made  for  four  successive  weeks 
in  such  newspaper  printed  in  this  State,  as  the  clerk  or  court  may 
prescribe.  5.  No  posting  is  required — publication  in  the  newspaper 
"is  sufficient." 

Against  Individuals.  1.  The  order  of  publication  is  alone  pub- 
lished. 2.  This  order  must  give  the  abbreviated  style  of  the  suit 
and  state  briefly  its  object.  3.  The  defendant  is  ordered  to  appear 
within  fifteen  days  after  due  publication  of  the  order.  4.  The  pub- 
lication is  to  be  made  in  such  newspaper  as  the  court  or  clerk  may 
prescribe,  whether  printed  or  published  in  this  State  or  not.  5. 
The  order  must  also  be  posted  at  the  front  door  of  the  courthouse. 


§    194  TIME    OF    SERVICE  321 

render  a  judgment  in  rem.  It  is  just  as  essential  in  such  a  case 
that  there  should  be  constructive  notice  as  it  is  in  a  personal 
judgment  that  there  should  be  personal  notice.  There  must  be 
some  kind  of  notification.  "The  manner  of  the  notification  is 
immaterial,  but  the  notification  itself  is  indispensable."26  In  a 
proceeding  in  rent,  as  already  stated,  an  order  of  publication  is 
a  valid  mode  of  giving  notice  to  parties  interested  in  the  res,  and 
so  a  bill  for  specific  performance  of  a  contract  to  convey  real 
estate  when  authorized  by  statute  to  be  maintained  on  an  order 
of  publication  is  substantially  a  proceeding  in  rem,  and  it  is  en- 
tirely competent  for  the  State  to  provide  by  statute  that  the 
title  to  real  estate  within  its  limits  shall  be  settled  and  determined 
by  a  suit  in  which  a  defendant,  being  a  non-resident,  is  brought 
into  court  by  publication.27  In  order  to  bind  a  party,  however, 
by  an  order  of  publication,  the  statute  must  be  strictly  followed, 
and  mistakes  in  the  names  of  parties  which  do  not  come  within 
the  doctrine  of  idem  sonans  will  vitiate  the  proceedings.28 

An  order  of  publication  in  Virginia  against  a  natural  person 
is  now  required  to  be  posted  at  the  front  door  of  the  court-house 
"on  or  before  the  next  succeeding  rule-day  after  it  is  entered,"29 
but  no  posting  is  required  of  an  order  of  publication  against  a 
corporation. 

§   194.    Time  of  service. 

Generally,  in  Virginia,  process  must  be  issued  before  the  re- 
turn day,  but  may  be  served  on  or  before  the  first  day  of  the 
rules  to  which  it  is  returnable.  It  cannot  be  served  later,  and, 
as  we  have  seen,  the  process  must  be  returnable  within  ninety 
days  from  its  date.  Generally,  service  on  Sunday  is  bad,30  but 

26.  Windsor   v.    McVeigh,   93   U.    S.   279,   281.     There   is    a   line   of 
State    cases,    however,    holding   that    the    judgment    is    not    void,   but 
voidable   only   and    cannot   be   collaterally   assailed.     Note,    50    L.    R. 
A.   598. 

27.  Clem  v.  Givens,  106  Va.  145,  55  S.   E.  567. 

28.  Steinman  v.  Jessee,  108  Va.  567,  62  S.   E.  275. 

29.  Code,    §    3231;    Acts    1902-3-4,    623. 

30.  Lee  v.  Willis,  99  Va.  16,  37  S.   E.  826;   Code,  §  2970;  19   Encl. 
PI.    &   Pr.    600. 

•—21 


322  VENUE  AND   PROCESS     .  §    194 

service  on  a  legal  holiday  is  held  good  in  West  Virginia  under 
the  phraseology  of  their  statute,31  and  it  is  expressly  provided  in 
Virginia  as  to  all  legal  holidays  that  the  service  shall  be  good.32 
Special  provision  is  made  for  service  of  attachments  on  Sunday 
when  necessary.  There  are  two  cases  in  which  the  statute  re- 
quires the  process  to  be  executed  at  least  ten  days  before  the  re- 
turn day:  (1)  It  is  provided  by  §  3220  of  the  Virginia  Code  that 
if  the  process  be  issued  in  an  action  brought  under  §  3215  (where 
the  cause  of  action  arose)  and  be  executed  on  the  defendant 
without  the  county  or  corporation  in  which  the  action  is  brought, 
it  must  be  executed  at  least  ten  days  before  the  return  day;  (2) 
under  §  3227,  it  is  provided,  with  reference  to  actions  against 
corporations,  their  trustees,  lessees,  or  receivers,  if  the  process 
be  served  on  an  agent  of  the  corporation,  or  in  any  other  county 
or  corporation  than  that  in  which  the  action  is  brought,  it  shall 
be  served  at  least  ten  days  before  the  return  day.33  It  is  pro- 
vided by  statute  in  Virginia,34  and  such  is  believed  to  be  the 
common  law,  "where  a  statute  requires  a  notice  to  be  given  or 
any  other  act  to  be  done  a  certain  time  before  any  motion  or  pro- 
ceeding, there  must  be  that  time,  exclusive  of  the  day  for  such 
motion  or  proceeding,  but  the  day  on  which  such  notice  is  given 
or  such  act  is  done  may  be  counted  as  part  of  the  time."  If  noth- 
ing is  said  about  Sunday,  it  is  to  be  included  as  one  of  the  days 
unless  the  last  day  falls  on  Sunday,  in  which  case  the  act  may 
generally  be  done  on  the  succeeding  day,  but  if  the  act  may  be 
lawfully  done  on  Sunday  and  the  last  day  falls  on  Sunday,  then 
Sunday  is  not  to  be  excluded.35  In  West  Virginia,  process  to 
commence  an  action  may  issue,  be  served,  and  be  returnable  on 
the  same  first  Monday  of  rules.36 

31.  Horn   v.    Perry,    11    W.   Va.   694. 

32.  Code,   §   2844a. 

33.  Va.   F.   &   M.    Ins.   Co.  v.   Vaughan,   88   Va.   832,    14   S.    E.    754; 
Staunton   B.   &  L.  Co.  v.   Haden,  92  Va.   201,   23   S.    E.  285. 

34.  Code,  §  5,  clause   8. 

35.  Bowles  v.  Brauer,  89  Va.  466,  16  S.   E.  356.     See  also  49  Am. 
St.    Rep.   217. 

36.  Foley  v.  Ruley,  43  W.  Va.  513,  27  S.  E.  268;   Spraggins  v.  W. 
Va.   Co.,   35   W.   Va.   139,    13   S.    E.   45;    Handlan   v.    Handlan,    37   W. 
Va.   486,   16   S.   E.   597. 


§  195  RETURN  OF  PROCESS  323 

§  195.    Return  of  process. 

A  return  is  a  brief  official  statement  by  an  officer  endorsed  on 
the  process,  stating  what  he  has  done  in  obedience  to  the  writ,  or 
why  he  has  done  nothing.  It  must  be  complete  in  itself,  and 
cannot  be  added  to  by  parol  evidence.  It  must  show  that  all  of 
the  statutory  requirements  for  the  particular  return  have  been 
complied  with.37  It  should  be  signed  by  the  officer  who  makes  it 
in  order  to  authenticate  it,  but  it  has  been  held  that  the  signa- 
ture of  the  officer  to  the  return  is  no  part  of  the  return.38  It  is 
provided  by  Code,  §  3227,  that  in  case  of  corporations,  the  re- 
turn shall  show  on  whom,  and  when,  the  service  was  made,  and 
that  it  was  by  delivery  of  a  copy  to  the  person  referred  to  in 
that  section  in  the  county  or  corporation  wherein  he  resides,  or 
wherein  his  place  of  business  is,  or  the  principal  office  of  his  cor- 
poration is  located.  If  served  by  a  deputy,  he  must  sign  not 
only  his  own  name  but  that  of  his  principal  also.39  If  a  re- 
turn is  made  by  a  deputy  in  his  own  name  alone,  a  motion  to 
quash  will  be  sustained.40  If,  however,  the  defendant  appears, 
and  does  not  object,  the  defect  is  waived.41  If  the  return  is  de- 
fective in  any  respect  pointed  out  by  §  3227,  it  is  declared  that 
it  shall  be  invalid.  Any  judgment  by  default  rendered  thereon 
is  utterly  void,  and  may  be  collaterally  assailed.42  Courts,  how- 
ever, are  extremely  liberal  in  allowing  returns  to  be  amended  for 
the  purpose  of  upholding  judgments,  and  a  return  has  been  per- 
mitted to  be  amended  years  after  a  judgment  by  default,  in  or- 
der to  validate  a  judgment  that  was  otherwise  invalid,  notwith- 
standing the  fact  that  the  officer  by  whom  the  return  was  made 
had  gone  out  of  office,43  or  was  dead.  The  amendment,  how- 

37.  Rowe    v.    Hardy,    97    Va.    674,    34    S.    E.    625;    Lile's    Notes    on 
Corp.    336. 

38.  Slingluff  v.   Collins,   109   Va.   717,   64   S.   E.   1055. 

39.  Code,   §   900.        • 

40.  Mitchell  v.   Com.,   89   Va.   826,   17   S.   E.   480;   Code,   §   900. 

41.  Harvey  v.  Skipwith,  16  Gratt.  410. 

42.  Staunton  Per.  B.  &  L.  Co.  v.   Haden,  92  Va.  201,  23  S.  E.  285. 

43.  Shenandoah   R.   Co.  v.   Ashby,  86  Va.  232,  9   S.   E.   1003;   Com. 
Ass.   Co.  v.   Everhart,   88   Va.   952,   14  S.    E.   836;    Staunton,   etc.,   Co. 
v.   Haden,   92  Va.  201,   23   S.    E.  285;   Goolsby  v.   St.  John,   25   Gratt. 
146. 


324  VENUE   AND   PROCESS  §    195 

ever,  is  not  a  matter  of  right,  and  cannot  be  made  except  by 
leave  of  court,  and  is  only  allowed  in  furtherance  of  justice,  and 
in  the  exercise  of  an1  enlightened  discretion  after  notice  to  the 
opposite  party.  It  will  not  be  permitted  unless  the  court  is  sat- 
isfied that  the  amendment  is  true,  and,  for  the  purpose  of  ascer- 
taining this  fact,  it  may  hear  evidence,  and  if  upon  such  hear- 
ing the  evidence  is  contradictory,  or  the  court  is  left  in  doubt 
and  uncertainty  as  to  what  the  truth  is,  it  will  not  permit  the 
amendment.44  The  amendment,  however,  when  made,  has  the 
same  effect  as  though  it  were  an  original  return  where  the  rights 
of  third  persons  have  not  intervened,  and  it  does  not  appear 
that  injustice  can  result  to  any  one.  There  is  no  specific  time 
within  which  a  return  must  be  amended,  but  after  a  great  lapse 
of  time  the  amendment  should  be  permitted  with  caution,  and  in 
no  case  should  it  be  allowed  unless  the  court  can  see  that  it  is 
in  furtherance  of  justice.45  The  form  of  the  return  is  generally 
very  simple ;  being  a  brief  statement  of  the  time  and  manner 
of  execution  of  the  process.  But  some  particularity  is  required 
in  the  return  on  process  against  a  corporation  under  §  3227  of 
the  Code.  The  following  forms  are  given  for  convenient  refer- 
ence : 

Service  on  Officer: 

Executed  on  the  Norfolk  and  Western  Railway  Company,  by 
delivering  to  F.  J.  Kimball,  the  president  of  the  said  company, 
in  the  city  of  Roanoke,  Va.,  in  which  the  principal  office  of  the 
said  company  is  located,  a  true  copy  of  the  within  summons,  this 
October  2,  1903.  R.  R.  WITT, 

Sergeant  of  Roanoke  City. 
Service   on  Agent : 

Executed  on  the  Norfolk  and  Western  Railway  Company,  by 
delivering  to  S.  O.  Campbell,  an  agent  of  said  company,  in  the 
county  of  Rockbridge,  in  which  he  resides^a  true  copy  of  the 
within  summons,  this  October  2,  1903,  there  being  no  officer  of 
other  person  in  said  county  on  whom  said  summons  could  be 
served.  HENRY  JONES. 

Deputy  for  R.  R.  Witt,  S.  R.  C. 

44.  Park  L.   &  I.  Co.  v.   Lane,  106  Va.  304,  55   S.   E.  690. 

45.  Slingluff  v.   Collins,  supra. 


§  196  DEFECTIVE  SERVICE  325 

Returns  made  by  officers  are  records  that  cannot  be  collat- 
erally assailed.46  Whether  the  return  of  an  officer  can  be  di- 
rectly assailed  is  a  question  upon  which  there  is  serious  conflict 
of  authority.  In  Virginia  it  has  been  held  that  the  return  cannot 
be  directly  assailed  whether  the  case  be  at  law  or  in  chancery — 
not  even  by  a  plea  in  abatement  before  judgment  rendered.47 
Whether  the  weight  of  authority  is  with  or  against  the  Virginia 
holding  is  not  material  to  inquire.  The  law  is  settled  in  Virginia, 
and  the  holdings  elsewhere  may  be  ascertained  by  consulting  the 
references  given  in  the  margin.  In  addition  to  the  reasons  stated 
by  the  Virginia  court  for  its  holding,  and  they  are  certainly  very 
cogent,  it  may  be  noted  that  the  Virginia  court  discountenances 
special  appearance  by  parties  who  have  been  actually  served  with 
process.  The  object  of  process  is  to  give  notice  to  defendants  of 
actions  against  them,  and  when  and  where  a  hearing  will  be  af- 
forded them,  and  no  great  amount  of  grace  should  be  extended 
to  a  defendant  who  admits  that  he  has  received  notice  in  ample 
time  to  make  defence,  but  claims  that  there  is  some  technical 
defect  about  the  manner  of  service.  The  court,  seeing  that  no 
harm  has  come  to  such  defendant,  or  can  come  to  him,  refuses  to 
entertain  an  objection  upon  purely  technical  grounds. 

It  has  been  held  in  West  Virginia  that  the  same  conclusive 
effect  is  not  to  be  given  to  returns  by  private  persons  as  to  those 
made  by  sworn  officers,  and  that  they  may  be  assailed  in  a  di- 
rect proceeding  for  that  purpose.48 

§   196.  Defective  service. 

If  the  writ  itself  is  valid  and  the  service  personal,  ordinarily 
a  judgment  rendered  on  defective  service  is  not  void,  but  voidable 
only,  and  cannot  be  collaterally  assailed,49  but  a  judgment  by  de- 

46.  Rader  r.   Adamson,   37   W.  Va.  582,   16   S.    E.  808;   McClung  v 
Mc\\  horter,   47   W.  Va.   150,   34   S.   E.  470. 

47.  Preston    ?•.    Kindrick,    94    Va.    760,    27    S.    E.    588,    3    Va.    Law 
Reg.   431,   and   note;    Ramsburg  v.    Kline,   96   Va.    465,   31    S.    E.   608, 
4   Va.    Law    Reg.    584,    and    note;    Sutherland   r.    Bank,    111    Va.    515, 
69  S.  E.  341,  16  Va.  Law  Reg.  744,  and  note    949;  Earle  v.  McVeigh, 
91  U.   S.  503;   Lile's   Notes   on  Corp.  340. 

48.  Peck  v.  Chambers,  44  W.  Va.  270,  28   S.   E.  706. 

49.  Note,  61  Am.  St.  Rep.  488. 


326  VENUE   AND   PROCESS  §    196 

fault  on  defective  service  which  is  constructive  merely  is  utterly 
void,  and  may  be  collaterally  assailed.  For  instance,  if  the  service 
be  on  an  agent  of  a  corporation,  the  statute  provides  that  the  return 
shall  show  when  and  on  whom  the  service  was  made,  and  that 
it  was  on  the  agent  in  the  county  in  which  he  resides,  or  his  place 
of  business  is,  or  the  principal  office  of  the  corporation  is  lo- 
cated; otherwise,  that  the  return  shall  be  invalid.50  So  also 
where  service  was  required  to  be  ten  days  before  judgment,  and 
the  return  shows  a  less  time,  a  judgment  by  default  thereon  is 
void.  But  where  the  service  is  on  a  defendant  personally,  al- 
though the  statute  requires  the  officer  to  return  the  manner  and 
time  of  service,  the  failure  to  state  the  time  and  manner  of  serv- 
ice does  not  invalidate  the  judgment  per  se,  but  must  be  pleaded 
in  abatement;  in  other  words,  the  judgment  could  not  be  col- 
laterally assailed.51  But  courts  are  extremely  liberal  in  allow- 
ing amendments  of  returns,  as  has  been  pointed  out  in  the  last 
section,  and  many  defects  may  be  thus  cured.  Defects,  how- 
ever, in  the  process  or  the  return  thereon  may  be  waived.  If 
a  defendant  appears  generally  and  defends  on  the  merits,  or 
makes  or  accepts  a  motion  for  a  continuance,  or  makes  any 
other  motion  which  does  not  involve  the  question  of  the  court's  ju- 
risdiction, he  thereby  waives  all  defects  in  the  process  and  the 
return  thereon.52  Generally,  if  a  party  desires  to  raise  a  ques- 
tion as  to  the  sufficiency  of  service  of  process,  he  should  enter 
special  appearance  for  this  purpose,  but  in  doing  so  he  should  be 
particular  not  to  allow  the  appearance ,  to  assume  such  shape  as 
will  admit  the  jurisdiction  of  the  court.  "An  appearance  for  any 
other  purpose  than  questioning  the  jurisdiction  of  the  court  be- 
cause there  was  no  service  of  process,  or  the  process  was  defect- 
ive, or  the  service  thereof  was  defective,  or  the  action  was  com- 
menced in  the  wrong  county,  or  the  like,  is  general  and  not  spe- 
cial, although  accompanied  by  the  claim  that  the  appearance  is 
only  special.  A  motion  to  vacate  proceedings  in  a  cause,  or  to 

50.  Code,   §   3227. 

51.  Barksdale   v.    Neal,    16    Gratt.    318;    4   Min.    Insi.    644;    Staunton 
Bldg.   Co.  v.   Haden,   92  Va.   201,   23   S.   E.   285. 

52.  New  River  Min.  Co.  v.  Painter,  100  Va.  507,  42  S.  E.  300;  Lane 
v.  P.auserman,   103  Va.  146,  48  S.  E.  857;   N.  &  W.  v.  Sutherland,   105 
Va.  545,  54  S.   E.  465;   Burlow  v.   Quarrier,  16   W.   Va.   108. 


§    196  DEFECTIVE    SERVICE  327 

dismiss  or  discontinue  it,  because  the  plaintiff's  pleading  does 
not  state  a  cause  of  action,  is  equivalent  or  analagous  to  a  de- 
murrer, and  amounts  to  a  general  appearance."53 

Process  may  be  merely  defective,  or  it  may  be  absolutely  void. 
If  merely  defective  the  defendant  appears  specially,  and,  as  a 
rule,  pleads  the  defect  in  abatement,  but  if  the  process  is  not 
merely  defective,  but  absolutely  void,  as  where  the  writ  in  an 
action  brought  under  §  3215  is  improperly  sent  out  of  the  county 
for  service,  or  is  illegally  issued  or  executed,  the  objection  may 
be  raised  not  only  by  a  plea  in  abatement,  but  by  a  mere  motion, 
or  the  court  may  take  notice  of  it  ex  officio.54  In  Hilton  v.  Con- 
sumers' Can  Co.,  supra,  there  was  a  motion  to  abate  a  foreign 
attachment  which  was  sustained.  The  attachment  was  the  only 
ground  of  jurisdiction  of  the  court,  and  there  was  no  personal 
service  of  the  summons.  Thereupon  the  defendant  appeared 
specially  and  moved  to  dismiss  the  action.  It  was  insisted  by  the 
plaintiff  that  the  defence  could  only  be  made  by  a  plea  in  abate- 
ment, but  the  court  held:  "A  motion  to  dismiss  for  want  of  ju- 
risdiction is  the  proper  and  only  mode  of  procedure  where  the 
defendant  has  not  been  summoned,  and  has  not  waived  the  sum- 
mons. One  not  before  the  court  cannot  be  required  to  plead. 
A  plea  in  abatement  is  proper  only  when  the  defendant  has  been 
summoned,  or  by  appearance  has  waived  the  summons.  Where 
the  matter  relied  upon  to  abate  an  action  is  a  fact  not  appearing 
on  the  record,  or  the  return  of  an  officer,  it  must  be  •  pleaded  in 
abatement  so  as  to  give  the  other  party  an  opportunity  to  trav- 
erse and  try  it,  but  where 'all  the  facts  relied  upon  in  abatement 
appear  by  the  record,  including  the  return  of  the  officer,  of 
which  the  court  will  take  judicial  notice  without  plea,  there  the 
action  may  be  dismissed  on  motion." 

53.  Norfolk  &  O.  V.  Ry.  Co.  v.  Turnpike    Co.,  Ill  Va.  131,  68  S. 
E.  :i46.     See  also  Harkness  v.  Hyde,  98  U.  S.  476;  Hilton  v.  Consum- 
ers' Can   Co.,   103   Va.  255,  48   S.   E.  899. 

54.  Warren  r.   Saunders,  27  Gratt.  259;   Lane  v.   Bauserman,  supra. 


CHAPTER  XXIV. 

PLEAS  IN  BAR. 

§  197.  Different  kinds  of  pleas  in  bar. 
Traverse   or   denial. 

The  common  traverse. 
The    special    traverse. 

The  general  traverse,  or  the  general  issue. 
Confession   and   avoidance. 
§  198.  Number  of  pleas  allowed. 
§  199.   Duplicity. 

§  197.   Different  kinds  of  pleas  in  bar. 

A  plea  in  bar  is  one  to  the  substantial  merits  of  the  case,  and, 
as  its  name  imports,  purports  to  bar  the  rights  of  the  plaintiff 
to  recover  at  all,  as  distinguished  from  other  pleas  which  simply 
deny  the  jurisdiction  of  the  court  over  the  parties,  or  seek  to 
suspend  or  abate  the  present  action,  but  do  not  prevent  another 
action  upon  the  same  cause  of  action  in  another  court,  or  un- 
der other  conditions.  Pleas  in  bar  are  also  designated  peremp- 
tory pleas,  pleas  to  the  action,  pleas  to  the  merits,  pleas  to  the 
issue,  or  issuable  pleas.1  Pleas  in  bar,  or  peremptory  pleas,  as 
are  hereinbefore  pointed  out,  are  generally  either  by  way  of 
traverse  or  denial,  or  by  confession  and  avoidance;2  and  pleas 
by  way  of  traverse  are  either  (1)  the  common  traverse,  or  (2) 
the  special  traverse,  or  (3)  the  general  traverse,  or  the  general 
issue  as  the  last  named  is  called.  The  common  traverse  denies 
the  allegation  of  the  declaration  in  the  language  of  the  allega- 
tion traversed,3  and  it  is  said  that  not  many  instances  of  it  occur 
in  pleas.4  At  present  it  is  rarely  encountered  in  pleading,  and 
when  it  is,  it  is  treated  as  the  general  issue.  The  special  traverse, 
or  traverse  with  an  absquc  hoc,  or  formal  traverse,  or  simple  trav- 
erse has  fallen  into  "innocuous  desuetude,"  is  rarely  used,  is 

1.  4  Min.   Inst.  760. 

2.  Ante,  §   183. 

3.  Stephen   on  PL,   §   145. 

4.  4  Min.  Inst.  761. 


§  197         DIFFERENT  KINDS  OF  PLEAS  IN  BAR  329 

seldom  if  ever  of  any  value,  and  is  of  interest  from  an  historical 
rather  than  a  practical  standpoint.5  "The  general  traverse  or 
general  issue  is-  a  form  of  traverse  which  occurs  only  in  the  plea 
and  at  no  subsequent  stage  of  the  altercation.  It  denies  the  al- 
legations of  the  plaintiff's  declaration  in  general  terms  and  not 
in  the  terms  of  the  allegation  denied.  It  appears  to  have  been 
denominated  the  general  issue  because  it  involves  the  whole  dec- 
laration, or  at  least  the  main  substance  of  it,  and  is  more  com- 
prehensive than  the  issue  tendered  by  the  common  traverse."* 
The  general  issue  in  each  of  the  different  common-law  actions, 
and  what  is  provable  under  each  has  been  hereinbefore  set  forth 
in  treating  these  actions.  All  pleas  in  bar  which  are  not  trav- 
erses are  designated  special  pleas,  and  whenever  it  is  said  that 
a  fact  must  or  may  be  specially  pleaded,  it  is  simply  meant  that 
the  defence  relied  on  must  or  may  be  made  by  a  plea  in  which 
the  facts  constituting  the  defence  are  specifically  set  forth  as  dis- 
tinguished from  pleading  the  general  issue  and  proving  the  facts 
under  that  plea.  In  other  words,  if  any  plea  in  bar  is  not  a  trav- 
erse, or  denial,  then  it  is  a  special  plea,  and  the  defendant  is 
said  to  plead  specially.  Not  every  defence,  however,  which  is 
sufficient  to  defeat  the  plaintiff's  claim  can  be  pleaded  specially. 
If  the  defence  amounts  to  the  general  issue,  it  is  required  to  be 
so  pleaded.  That  is,  the  general  issue  is  to  be  pleaded,  but  there 
are  many  facts  which  do  not  amount  to  the  general  issue,  but 
are  provable  under  the  general  issue.  The  latter  only  are  al- 
lowed to  be  specially  pleaded.  The  distinction  between  the  two 
is  thus  drawn  by  Judge  Parker,  who  says  :7  "I  know  of  no  rule 
which  inhibits  a  party  from  pleading  specially  what  he  might 
give  in  evidence  under  the  general  issue,  unless  the  matter 
pleaded  amounts  to  the  general  issue,  that  is  to  say,  denies  the 
allegation  which  the  plaintiff  is  bound  to  prove,  but  where  the 
cause  of  action  is  avoided  by  a  matter  ex  post  facto,  it  may  al- 
ways be  specially  pleaded,  whether  it  could  be  given  in  evidence 
under  the  general  issue  or  not."  If,  then,  a  plea  denies  some 
fact  which  the  plaintiff  is  obliged  to  prove  in  order  to  maintain 

5.  Stephen  on  PL,  §  156  ff.     A  modern  instance  of  its  use  may  be 
seen  in  Townsend  v.  N.  Ry.  &  L.  Co.,  105  Va.  22,  53  S.  E.  970. 

6.  4  Min.   Inst.  761. 

7.  Maggort  v.   Hansbarger,   8   Leigh   532. 


330  PLEAS  IN  BAR  §  197 

his  action,  it  amounts  to  the  general  issue  and  must  be  so  pleaded. 
For  example,  if  a  plaintiff  sues  for  trespass  upon  his  garden  and 
carrying  away  his  vegetables,  and  the  defendant  pleads  specially 
that  the  plaintiff  had  no  garden,  this  plea  would  be  bad,  because 
it  is  a  necessary  part  of  the  plaintiff's  case  to  prove  that  he  had 
a  garden,  and  that  the  defendant  trespassed  upon  it  and  if  he 
failed  to  prove  it,  he  could  not  recover.  In  such  case,  the  clef  end- 
ant  is  not  permitted  to  plead  the  above  fact  specially,  but  is  re- 
quired to  plead  the  general  issue  of  not  guilty.  The  test  in  all 
cases  is,  would  the  plaintiff  be  obliged  to  prove  the  fact  in  or- 
der to  maintain  his  action.  The  distinction  between  what 
amounts  to  the  general  issue,  and  what  is  provable  under  the 
general  issue,  is  further  drawn  by  Moncure,  Judge,  as  follows:8 
""A  plea  amounts  to  the  general  issue  when  it  traverses  matter 
which  the  plaintiff  avers,  or  must  prove  to  sustain  his  action, 
whether  such  traverse  be  direct  or  argumentative.  *  *  * 
The  plaintiff  must  prove  the  facts  to  sustain  his  action,  and  a 
plea  traversing  any  of  them  or  averring  facts  inconsistent  there- 
with must  therefore  amount  to  the  general  issue.  *  *  * 
Matter  which  amounts  to  the  general  issue  cannot  be  specially 
pleaded.  *  *  *  All  matters  of  defence  which  give  color  of 
action  to  the  plaintiff  may  be  specially  pleaded,  and  all  matters 
of  defence  which  do  not  give  color  of  action  amount  to  the 
general  issue  and  must  be  given  in  evidence  under  it."9  Com- 
menting upon  the  above  statements  of  Judge  Moncure,  Pro- 
fessor Lile  says:  "The  test  here  laid  down  makes  the  applica- 
tion of  the  rule  comparatively  simple.  Every  defence  which  is 
by  way  of  confession  and  avoidance,  or  gives  color  to  the  plain- 
tiff's action,  may  be  specially  pleaded;  but  if  it  gives  no  such 
color,  and  denies  by  anticipation  what  the  plaintiff  must  affirma- 
tively prove,  then  it  may  not  be  specially  pleaded,  but  must  be 
set  .up  under  the  general  issue."10  Notwithstanding  the  well- 
settled  rule  stated  above,  however,  if  the  defendant  should  plead 
a  matter  specially  which  amounts  to  the  general  issue,  and  the 
plaintiff  does  not  object  to  it  but  takes  issue  on  it,  or  if  he  ob- 

8.  B.   &  O.   R.  Co.  v.  Polly,   14  Gratt.  447,  453. 

9.  1   Chitty   PI.   526,   530. 
10.  4  Va.   Law   Reg.   772. 


§  197        DIFFERENT  KINDS  OF  PLEAS  IN  BAR  331 

jects  on  that  ground  but  his  objection  is  overruled  it  is  no 
ground  for  reversal,  but  the  defendant  will  probably  be  limited 
to  the  defence  set  up  by  his  special  plea.11  If  a  defendant,  there- 
fore, should  plead  a  matter  amounting  to  the  general  issue  in  a 
special  plea,  it  might  be  to  the  interest  of  the  plaintiff  to  take 
issue  on  it,  rather  than  object  to  it,  so  as  to  narrow  the  line  of 
the  defence  of  the  defendant,  but  of  course  this  would  be  un- 
availing if  he  pleaded  that  matter  specially  and  also  the  general 
issue.  It  has  been  hereinbefore  pointed  out  that  the  general  is- 
sues in  debt  on  simple  contract,  assumpsit,  and  trespass  on  the 
case,12  are  very  comprehensive,  and  under  them  any  defence  may 
be  made  with  a  few  exceptions  hereinbefore  noted.  The  defend- 
ant, however,  is  not  obliged  to  make  these  defences  under  these 
broad  general  issues  but  may  plead  most  of  them  specially. 
Whether  he  shall  be  allowed  to  plead  specially  a  matter  provable 
under  the  general  issue,  and  how  many  special  pleas  he  will  be 
permitted  to  file,  lies  very  largely  in  the  discretion  of  the  trial 
court,  whose  action  ordinarily  will  not  be  reversed  unless  plainly 
erroneous.  While  the  trial  court  should  not  permit  such  a  mul- 
tiplicity of  pleas  as  would  tend  to  confuse  the  jury,  and  while 
there  are  expressions  in  some  of  the  cases  indicating  that  spe- 
cial pleas  are  still  not  to  be  favored,  still,  as  pointed  out  by  Phle- 
gar,  Judge,  the  plaintiff  is  usually  benefited  rather  than  injured 
by  special  pleas,  because  they  give  full  and  specific  notice  of  the 
real  defence  upon  which  the  defendant  intends  to  rely;  and 
hence,  unless  some  improper  advantage  is  sought  by  a  defendant, 
or  is  likely  to  be  obtained  by  him  by  reason  of  pleading  spe- 
cially, such  pleas  should  be  favored.13  The  reason  of  the  rule 
requiring  matters  amounting  to  the  general  issue  to  be  so  pleaded 
is  said  to  be  to  prevent  prolixity  in  pleading,  and  furthermore,  as 
a  general  rule,  such  a  plea  will  be  either  argumentative  or  will 
tcant  color.14  There  is  no  limit  to  the  variety  of  special  pleas, 
but  a  few  of  those  in  most  common  use  are  treated  separately 
in  the  next  succeeding  chapters.  No  pleas  in  bar  are  required 

11.  Norfolk  &  W.  R.  Co.  v.  Mundy,  110  Va.  422,  66  S.  E.  61. 

12.  Ante,  §§  73,  93,  152. 

13.  Ches.  &  O.  R.  Co.  r.  Rison,  99  Va.  18,  33,  37  S.   E.  320;  6  Va. 
L.   Reg.,  valuable   note   at  p.   679. 

14.  Stephen  on   PL,   §  247. 


332  PLEAS  IN    BAR  §    198 

to  be  sworn  to  in  Virginia,  except  those  specially  designated  in 
some  statutes.15 

§   198.   Number  of  pleas  allowed. 

At  common  law  in  order  to  secure  singleness  of  issue,  the  de- 
fendant was  not  allowed  to  plead  but  one  matter  of  law  or  fact. 
He  might  demur  or  plead,  but  he  could  not  do  both.  The  plain- 
tiff, however,  was  allowed  to  put  several  counts  in  his  declara- 
tion, either  upon  different  claims  or  varying  statements  of  the 
same  claim.  To  each  of  these  several  counts,  or  to  distinct  parts 
of  the  same  count,  the  defendant  could  make  one  answer  of  law 
or  of  fact.  This  rule  of  the  common  law  was  modified  in  Eng- 
land by  statute,16  providing  that  "it  shall  be  lawful  for  any  de- 
fendant *  *  *  in  any  action  or  suit,  *  *  *  in  any  court  of 
record  with  leave  of  the  court  to  plead  as  many  several  matters 
thereto  as  he  shall  think  necessary."  By  a  corresponding  stat- 
ute in  Virginia,  it  is  provided  that  "the  defendant  in  any  action 
may  plead  as  many  several  matters,  whether  of  law  or  fact,  as 
he  may  think  necessary,  and  he  may  file  pleas  in  bar  at  the  same 
time  with  pleas  in  abatement,  or  within  a  reasonable  time  there- 
after, but  issues  on  the  pleas  in  abatement  shall  be  tried  first."17 
It  is  also  provided  by  statute  in  Virginia  that  "it  shall  not  be 
necessary  to  state  in  any  second  or  other  plea  that  it  is  pleaded 
by  leave  of  the  court,  or  according  to  the  form  of  the  statute, 
or  to  that  effect."18  It  is  pointed  out  by  Professor  Graves  in 
his  Notes  on  Pleading,19  that  the  English  and  Virginia  statutes 
differ  in  three  particulars:  (1)  No  leave  of  court  is  required 
in  Virginia;  (2)  the  Virginia  statute  extends  to  pleas  in  abate- 
ment as  well  as  pleas  in  bar,  and  several  dilatory  pleas  may  be 
pleaded  at  the  same  time,  and  dilatory  pleas  and  pleas  in  bar 
may  be  pleaded  together;  and  (3)  that  the  defendant  in  Virginia 
is  permitted  to  both  demur  and  plead  to  the  declaration.  It  may 
be  further  noted  that  the  English  courts,  under  the  rule  requir- 

15.  Section    183,   ante,   points    out   the   pleas   which    in    Virginia   are 
required   to   be   sworn   to. 

16.  4  Ann.  Ch.  16,  §  4. 

17.  Code,  §  3264. 

18.  Code,  §  3270. 

19.  1st   Ed.,   Graves'  Notes  on   PI.   104. 


NUMBER    OF    PLEAS    ALLOWED  333 

ing  leave  of  the  court  to  file  more  than  one  plea,  refused  to  al- 
low inconsistent  pleas  to  be  filed,  "but  with  us  inconsistent  pleas 
are  allowable,  and  in  trying  one,  the  court  cannot  look  to  the  ex- 
istence of  the  other,  for  if  it  did  they  would  neutralize  each 
other,  hence  we  look  upon  each  branch  of  the  pleading  as  totally 
separate  and  distinct  from  every  other,  and  the  defences  under 
one  cannot  be  straitened  or  curtailed  by  the  existence  of  the 
oiher.  Were  it  otherwise,  the  liberty  of  pleading  several,  and 
even  contradictory,  pleas  would  be  defeated."20  It  will  be  ob- 
served that  the  Virginia  statute,  like  the  English  statute,  uses  the 
word  "plead"  in  a  technical  sense,  and  hence  it  applies  only  to 
the  defendant's  answer  to  the  plaintiff's  declaration,  and  does  not 
apply  to  the  replication,  rejoinder,  or  any  subsequent  pleading. 
As  to  the  replication,  rejoinder,  and  all  subsequent  pleadings,  the 
common-law  rule  still  prevails  in  Virginia,  and  the  pleader  can 
make  but  one  answer,  whether  of  law  or  fact,  to  the  antecedent 
pleading.  He  may  demur  or  he  may  answer  in  fact,  but  he  can- 
not do  both.21 

In  West  Virginia  it  is  provided  that  "the  defendant  in  any  ac- 
tion or  suit  may  plead  as  many  several  matters,  whether  of  law 
or  fact,  as  he  shall  think  necessary,  except  that  if  he  plead  the 
plea  of  non  est  factum,  he  shall  not  without  leave  of  the  court 
be  permitted  to  plead  any  other  pleas  inconsistent  therewith.  To 
any  special  plea  pleaded  by  a  defendant,  the  plaintiff  may  plead 
as  many  special  replications  as  he  may  deem  necessary."22  This 
statute  differs  from  the  Virginia  statute  in  two  important  par- 
ticulars:  (1)  if  the  defendant  pleads  non  est  fa-ctum,  it  is  neces- 
sary for  him  to  obtain  the  leave  of  the  court  in  order  to  be  per- 
mitted to  plead  any  other  plea  inconsistent  therewith;  (2)  the 
plaintiff  is  permitted  to  make  several  replications  to  a  defend- 
ant's plea,  which  cannot  be  done  in  Virginia,  but  this  statute  ex- 
tends no  further  than  the  replication,  and  even  though  several 
replications  of  fact  are  permitted,  the  plaintiff  is  not  permitted 

20.  Tucker,  Judge,   in   McNutt  v.  Young,  8   Leigh  542,   553. 

21.  Ches.  &  O.  R.  Co.  v.  Amer.  Exch.  Bank,  92  Va.  495,  23  S.  E. 
-.935,  1  Va.  Law  Reg.  825,  836,  note  by  Judge  Burks. 

22.  W.  Va.   Code,   1906,   §   3840. 


334  PLEAS    IN    BAR  §    199 

both  to  demur  and  reply.23  While  only  one  replication  is  al- 
lowed at  common  law  and  in  Virginia,  if  more  than  one  is  in 
fact  filed,  the  defendant  should  move  to  strike  out  all  but  one 
and  to  require  the  plaintiff  to  elect  on  which  replication  he  will 
rely,  but  if  no  such  motion  is  made,  no  objection  is  raised,  and 
issue  is  taken  on  each  of  the  replications,  it  is  presumed  that  the 
objection  cannot  be  made  in  the  appellate  court  for  the  first  time,, 
and  that  the  defendant  will  be  deemed  to  have  waived  the  rule  of 
law  in  his  favor.24 

§   199.   Duplicity. 

It  is  a  rule  of  pleading  that  pleadings  should  not  be  double. 
As  applied  to  pleas,  it  means  that  the  defendant  should  not  be 
permitted  to  set  up  more  than  one  defence  in  a  single  plea.  He 
is  permitted  in  Virginia  to  plead  as  many  matters  of  law  or 
fact  as  he  chooses,  but  this  does  not  mean  that  these  defences 
can  be  set  up  in  the  same  plea.  Each  defence  must  be  set  up  by 
a  separate  and  distinct  plea,  and  if  more  than  one  defence  is  set 
up  in  a  single  plea,  the  plea  is  said  to  be  double,  and  is  objec- 
tionable on  that  account.  The  objection,  however,  is  one  of 
form  and  not  of  substance,  and  it  is  said  could  be  taken  advan- 
tage of  at  common  law  by  special  demurrer  only,25  and  could 
not  be  taken  advantage  of  by  a  general  demurrer,26  but  special 
demurrers  have  been  abolished  in  Virginia  and  West  Virginia 
except  as  to  pleas  in  abatement;27  and  there  has  been  some  dis- 

23.  Camden    Clay    Co.    v.    New    Martinsville,   —   W.    Va.   — ,    68    S. 
E.  118. 

24.  See   Stimmell  v.   Benthall,  108  Va    141,  60  S.   E.   765. 

25.  Grayson    v.    Buchanan,    88    Va.    251,    13    S.    E.    457;    Sweeney   v. 
Baker,  13  W.  Va.  158. 

26.  5   Rob.  Pr.  305;   Cunningham  v.   Smith,   10   Gratt.   255. 

27.  Section  3272  of  the  Code  is  as  follows:     "On  a  demurrer   (un- 
less  it  be   to   a  plea   in   abatement),   the   court   shall   not   regard   any 
defect    or    imperfection    in    the    declaration    or    pleadings,    whether    it 
has  been   heretofore   deemed   mispleading  or  insufficient  pleading  or 
not,    unless    there    be    omitted    something    so    essential    to   the   action 
or  defence,   that  judgment,   according  to   law   and   the  very  right  of 
the    cause,    cannot   be    given.      No    demurrer    shall    be    sustained,    be- 
cause of  the  omission  in  any  pleading  of  the  words,  'this  he  is  ready 


§  199  DUPLICITY  335 

cussion  as  to  whether  the  objection  could  be  raised  at  all  in  any 
other  way.  In  Virginia  it  has  been  held  that  duplicity  in  a  dec- 
laration is  a  defect  of  form  only,  and  cannot  be  taken  advantage 
of  by  a  general  demurrer  ;28  and  it  is  doubtful  if  the  vice  can  be 
reached  at  all.  If  it  can  be,  it  is  probably  by  a  motion  to  compel 
the  plaintiff  to  elect  on  which  cause  of  action  he  will  proceed. 
As  to  pleadings  subsequent  to  the  declaration,  it  has  been  held 
that  "special  demurrers  having  been  abolished,  the  motion  to  re- 
ject or  strike  out  can  be  made  to  obviate  objections  to  pleadings, 
such  as  duplicity,  and  the  like,  which  cannot  now  be  raised  by  a 
demurrer."29  And  the  same  rule  probably  prevails  elsewhere.30 
In  West  Virginia,  it  is  stated  in  the  syllabus  of  a  case31  that  du- 
plicity in  a  plea  is  no  longer  ground  of  demurrer  or  objection 
to  it.  It  is  doubtful  if  the  opinion  itself  or  the  authorities  cited 
go  quite  so  far,  but,  as  the  syllabus  is  made  by  the  court,  it  is 
of  as  much  authority  as  the  opinion  itself.32 

It  must  be  remarked,  however,  that  no  matters,  however  mul- 
tifarious, will  operate  to  make  a  pleading  double  that  together 
constitute  but  one  connected  proposition  or  entire  point.33 

to  verify,'  or  'this  he  is  ready  to  verify  by  the  record,'  or,  'as  ap- 
pears by  the  record';  but  the  opposite  party  may  be  excused  from 
replying,  demurring,  or  otherwise  answering  to  any  pleading,  which 
ought  to  have,  but  has  not,  such  words  therein,  until  they  be  in- 
serted." W.  Va.  Code,  1906,  §  3849. 

28.  N.  &  W.  Ry.  Co.  r.  Ampey,  93  Va.  121,  25  S.  E.  226;  So.  Ry. 
Co.  v.   Blanford,   105   Va.   373,   54  S.    E.   1;   So.   Ry.   Co.  v.   Simmons, 
105  Va.  651,  55   S.   E.  459. 

29.  Ches.  &  O.  R.  Co.  r.  Rison,  99  Va.  18,  28,  37  S.  E.  320;  note, 
1  Va.   Law   Reg.  836. 

30.  18   Encl.  PI.  &  Pr.  651,  2. 

31.  Poling  r.   Maddox,   41   W.   Va.   779,   24   S.   E.   999. 

32.  It  is  provided  both  by  the  constitution   of  West  Virginia   (art. 
VIII.   §   5)    and   by   statute    (Code,   W.   Va.,   §   4059)    that   the   court 
shall    prepare    "a    syllabus    of   the    points    adjudicated    in    each    case." 
It  is  also  provided  in  W.  Va.  that  no  decision  of  the  court  of  appeals 
shall  be  binding  on  the  inferior  court,  except  in  the  particular  case 
decided,   unless    it   is   concurred   in   by   at   least   three  judges   of  that 
court.     Constitution,   art.   VIII,    §   4;   Code,   §   4058. 

33.  As   illustrating  this   rule,   see   Va.   F.   &   M.    Ins.   Co.  v.   Saund- 
ers,   86  Va.   969,   11   S.   E.   794;   Reese  v.   Bates.  94  Va.   321,   26  S.   E. 
8f>:>:   Deatrick  r.   Ins.  Co.,  107  Va.  602,  59  S.  E.  489;  and  as  illustra- 


336  PLEAS  IN  BAR  §  199 

Although  the  objection  for  duplicity  may  be  raised  in  Virginia 
and  elsewhere  than  West  Virginia,  in  the  manner  hereinbefore 
pointed  out,  yet  it  must  be  raised,  if  at  all,  in  the  trial  court,  and 
cannot  be  raised  for  the  first  time  in  the  appellate  court.  If  a 
replication  or  other  subsequent  pleading  sets  up  two  or  more 
separate  and  distinct  replies,  but  the  defendant  without  objection 
takes  issue  thereon,  and  the  court  renders  judgment  on  such  is- 
sues, the  objection  on  the  ground  of  duplicity  will  be  deemed  to 
have  been  waived.34 

tive  of  a  plea  in  abatement  held  to  be  bad  for  duplicity,  see   Guar- 
antee Co.  v.  Bank,  95  Va.  480,  28  S.  E.  909. 

34.  Stimmell  v.  Benthal,  108  Va.  141.  60  S.  E.  765;  18  End.  PI.  & 
Pr.  651,  652. 


CHAPTER  XXV. 
DEMURRER. 

§  200.  Introductory. 

§  201.  Definition — When    not    applicable — Time    of    filing. 

§  202.  Forms  of  demurrer — General — Special — Applicability. 

§  203.  Election  to  demur  or  plead. 

§  204.  Who  may  demur. 

§  205.  Causes  of  demurrer. 

§  206.  Effect  of  demurrer. 

§  207.  Effect  of  failure  to  demur — Pleading  over. 

§  208.  Judgment  on  demurrer. 

§  200.  Introductory. 

Pleading  is  an  orderly  statement  in  a  judicial  proceeding  of 
some  ground  of  action  or  defence.  The  answer  to  every  decla- 
ration or  subsequent  pleading  must,  with  a  few  well  established 
exceptions,  assume  one  or  the  other  of  three  forms.  It  must  be 
either  (1)  a  denial  of  the  facts  alleged,  which  is  done  by  a  plead- 
ing called  a  traverse,  or  (2)  an  admission  of  the  truth  of  such 
facts,  and  the  assertion  of  some  new  fact  or  facts  which  ex- 
cuses or  justifies  the  facts  adversely  alleged,  which  is  done  by  a 
plending  by  way  of  confession  and  avoidance,  or  (3)  an  admis- 
sion of  the  facts  adversely  alleged  accompanied  by  a  statement 
that  they  do  not  state  any  legal  ground  of  action  or  defence  (as 
the  case  may  be),  which  is  done  by  a  pleading  called  a  demurrer. 
So,  likewise,  if  any  pleading  fails  to  measure  up  to  one  or  the 
other  of  these  requirements,  that  is,  is  neither  a  traverse,  con- 
fession and  avoidance,  nor  demurrer,  it  is  bad  in  law,  and  the 
means  of  determining  whether  it  does  so  measure  up  or  not  is 
by  a  demurrer. 

§  201.  Definition— When  not  applicable — Time   of  filing. 

A  demurrer  is  a  pleading  by  which  the  pleader  objects  to  pro- 
ceeding further  because  no  case  in  law  has  been  stated  on  the 
other  side,  and  of  this  he  demands  the  judgment  of  the  court 
before  he  will  proceed  further.     It  lies  only  for  a  matter  al- 
—22 


338  DEMURRER  §    201 

ready  apparent  on  the  face  of  the  pleadings,  or  which  is  made 
so  to  appear  by  oyer.  It  presents  a  question  of  law  only,  to  be 
decided  by  the  court.  It  in  effect  says :  Admit  all  you  say  to 
be  true,  the  law  affords  you  no  relief  in  the  form  sought.  The 
word  demurrer  is  derived  from  the  Latin  demorari  and  the 
French  demorer,  signifying  a  delay  or  halt  in  the  progress  of 
the  action  until  the  court  has  decided  whether  the  pleading  to 
which  it  is  interposed  states  a  case.  It  is  the  pleading  by  which 
the  legal  sufficiency  of  every  other  pleading  is  tested.  It  is  not 
a  mere  statement,  as  it  is  sometimes  called,  nor  is  it  a  plea,  in  a 
technical  sense,  but  it  is  a  pleading  raising  a  question  of  law  for 
the  decision  of  the  court ;  and,  being  a  pleading,  is  per  se  a  part 
of  the  record,  needing  no  bill  of  exception  to  make  it  such.  The 
word  demurrer  when  used  alone  always  signifies  an  objection  to 
a  pleading  as  distinguished  from  a  demurrer  to  the  evidence.  A 
demurrer  is  addressed  to  matters  appearing  on  the  face  of  the 
pleadings.  In  aid  of  it,  the  court  cannot  look  to  facts  appearing 
in  other  parts  of  the  record.1  Objections  to  defects  appearing 
in  other  parts  of  the  record  which  are  not  pleadings,  such  as  ;i 
failure  to  file  an  affidavit  with  a  plea  where  such  an  affidavit  is 
required,  or  a  bill  of  particulars,  or  the  filing  of  an  insufficient 
account  with  a  declaration,  cannot  be  raised  by  demurrer.  Neither 
the  affidavit  filed  with  a  plea  (as  under  Code,  §  3299),  nor  a  bill 
of  particulars  filed  with  a  declaration,  is  any  part  of  the  plead- 
ings, and  hence  defects  therein  cannot  be  reached  by  demurrer. 
The  point  should  be  raised  in  such  cases  by  objecting  to  the  re- 
ception of  the  plea,  or  a  motion  to  strike  it  out,  if  already  in, 
for  the  want  of  a  proper  affidavit;  or  an  objection  to  the  suffi- 
ciency of  the  bill  of  particulars  or  account,  and  in  either  case,  if 
the  objection  is  overruled,  by  filing  a  bill  of  exception.2 

No  time  is  fixed  at  which  a  general  demurrer  must  be  filed. 
It  must,  of  course,  be  filed  before  final  judgment  by  default,  or 

1.  Brooks  v.  Metropolitan  Life  Ins.   Co.,  70  N.  J.  Law  36,  56  Atl. 
168. 

2.  Lewis  v.    Hicks,   96  Va.   91,   30   S.    E.   466;    Spencer  v.   Field,   97 
Va.  41,  33  S.  E.  380;   Geo.  Campbell  Co.  v.  Angus,  91  Va.  438,  22  S. 
E.    167;    Columbia  Accident   Ass'n   v.   Rockey,   93   Va.    678,   25    S.    E. 
1009;  Chestnut  v.  Chestnut,  104  Va.  539,  52  S.  E.  348;  Abell  v.  Penn. 
Ins.   Co.,  18  W.  Va.  400;   Sheppard  v.   Peabody,  21   W.  Va.   368. 


§    202  FORMS  OF  DEMURRER  339 

before  the  case  is  heard  and  decided  on  the  issues  of  fact.  It 
would  come  too  late  after  verdict.  But  it  is  provided  by  statute 
in  Virginia3  that  "the  defendant  in  any  action  may  plead  as 
many  several  matters,  whether  of  law  or  fact,  as  he  shall  think 
necessary,"  thereby  putting  issues  of  law  (which  are  raised  by 
demurrer)  on  the  same  footing  as  issues  of  fact,  and  permitting 
demurrers  to  be  filed  whenever  a  plea  in  bar  might  be.  Logic- 
ally, it  would  seem  that  issues  of  law  should  be  first  made  up 
and  decided,  but  under  this  statute  the  demurrer  of  a  defendant 
to  a  plaintiff's  declaration  and  pleas  in  bar  are  put  on  the  same 
footing  as  to  the  time  of  filing.  Whether,  after  the  issues  have 
been  made  up,  a  defendant  should,  at  a  subsequent  term,  be  per- 
mitted to  demur  or  to  add  additional  pleas  would  seem  to  rest 
in  the  sound  discretion  of  the  trial  court.  In  an  early  case,  the 
defendant,  three  years  after  he  had  pleaded,  was  permitted  to 
withdraw  his  plea  and  demur  to  the  declaration  and  tender  a  new 
plea,  and  the  case  was  decided  in  his  favor  on  the  demurrer.4 
In  practice,  the  defendant  generally  first  demurs  to  the  declara- 
tion and,  if  his  demurrer  is  overruled,  he  is  allowed,  as  of  course, 
to  plead  to  the  merits,5  or  else  files  his  demurrer  and  pleas  in 
bar  at  the  same  time,  and,  if  his  demurrer  is  overruled,  simply 
stands  upon  his  pleas.  The  latter  practice  is  commended. 

§  202.   Forms    of    demurrer — General — Special — Applica- 
bility. 

In  the  absence  of  statute  no  particular  form  is  necessary.  At 
common  law  defects  of  form  as  well  as  of  substance  could  be 
relied  on  under  a  general  demurrer  assigning  no  cause  except 
in  the  single  instance  of  duplicity,  which  had  to  be  mentioned 
specially.  But  by  Statutes  27  Eliz.,  and  4  and  5  Anne,  the 
judges  were  required  to  give  judgment  "according  to  the  very 
right  of  the  case  and  matter  of  law"  without  regarding  any  de- 
fect, imperfection  or  want  of  form,  except  those  which  the  party 
demurring  should  "specially  and  particularly  set  down  and,  ex- 
press in  connection  with  his  demurrer  as  causes  of  the  same."6 

3.  Code,  §  3264. 

4.  Miller  v.   McLuer,   Gilmer  338. 

5.  1  Rob.  Pr.  (old)  286. 

6.  Martin    on    Civil    Procedure,    196,    197;    4    Min.    Inst.    890.    891; 
Stephen  PL,  §  139;  Cunningham  v.  Smith,  10  Gratt.  257. 


340  DEMURRER  §    202 

A  similar  statute  was  enacted  in  Virginia  at  an  early  day7  and 
so  the  law  continued  till  1849  when  the  revisers  proposed  and 
the  legislature  adopted  what  is  now  §  3272  of  the  Code,  declar- 
ing that  "on  a  demurrer  (unless  it  be  to  a  plea  in  abatement) 
the  court  shall  not  regard  any  defect  or  imperfection  in  the  dec- 
laration or  pleadings  whether  it  has  been  heretofore  deemed  mis- 
pleading or  insufficient  pleading,  or  not,  unless  there  be  omitted 
something  so  essential  to  the  action  or  defence  that  judgment, 
according  to  law  and  the  very  right  of  the  case,  cannot  be  given 
*  *  *  ."  Under  the  English  statutes  and  the  earlier  Vir- 
ginia statute,  mere  formal  defects  could  be  taken  advantage  of 
on  demurrer  if  they  were  "particularly  set  down  and  expressed," 
but  the  avowed  object  of  the  statute  of  1849  was  to  abolish 
special  demurrers  in  all  cases  except  in  the  single  case  of  pleas 
in  abatement.8 

The  provisions  of  the  English  statute  led  to  the  division  of 
demurrers  into  general  and  special,  the  former  applicable  to 
matters  of  substance,  and  the  latter  to  matters  of  form.  The 
latter  were  designated  special  because  the  grounds  thereof  were 
required  to  be  "specially"  set  down,  while  the  former  were  called 
general  because  they  excepted  to  the  sufficiency  of  the  antece- 
dent pleading  in  general  terms  without  specifically  pointing  out 
the  nature  of  the  objection  intended  to  be  relied  on.9  Now,  in 
Virginia,  defects  of  form,  except  in  pleas  in  abatement  (which 
term  includes  all  dilatory  pleas),  are  no  longer  available  as  ob- 
jections to  pleadings.10  Formerly,  general  demurrers  were  fre- 
quently pleaded  orally,  and  the  clerk  noted  their  filing  and  the 
ruling  of  the  court  thereon  in  the  order  book,  and  they  became 
a  part  of  the  record.  No  grounds  were  stated  except  in  the 
oral  argument.  Now  it  is  provided  by  statute  that  "the  form  of 
a  demurrer  or  joinder  in  demurrer  may  be  as  follows:  'The 
defendant  (or  plaintiff)  says  that  the  declaration  (or  other 
pleading)  is  not  (or  is)  sufficient  in  law:'  provided,  that  all 
demurrers  shall  be  in  writing,  except  in  criminal  cases,  and  in 

7.  1   Rev.  Code   211,  §§   101,   103. 

8.  Report   of   Revisors,   849. 

9.  Stephen  PI.,  §  139. 

10.  See  Code,  §§  3243,  3244,  3245,  3246,  3247,  3272. 


§    202  FORMS  OF  DEMURRER  341 

civil  cases  the  court,  on  motion  of  any  party  thereto,  shall,  or, 
of  its  own  motion,  may  require  the  grounds  of  demurrer  relied 
on  to  be  stated  specifically  in  the  demurrer;  and  no  grounds 
shall  be  considered  other  than  those  so  stated,  but  either  party 
may  amend  his  demurrer  by  stating  additional  grounds,  or  other- 
wise, at  any  time  before  the  trial."11 

It  is  to  be  observed  that  the  statute  requires  that  all  demurrers 
in  civil  cases  shall  be  in  -writing,  and  the  grounds  thereof  shall 
or  may  be  required  to  be  specifically  stated  in  the  demurrer. 
But  long  before  this  statute  was  enacted  it  had  been  held  that 
the  mere  statement  of  the  grounds  of  the  demurrer  did  not  make 
it  a  special  demurrer.  If  it  were  for  a  matter  of  substance  it 
was  a  general  demurrer  although  the  grounds  were  specifically 
enumerated,  and  if  for  matter  of  form  it  was  a  special  de- 
murrer.12 

"A  demurrer  to  an  entire  declaration,  whether  general  or 
special,  raises  the  question  whether  there  be,  or  be  not,  matter 
in  the  declaration  sufficient  to  maintain  the  action.  If  there 
be  several  counts,  and  one  is  good,  that  is  sufficient  to  maintain 
the  action,  and  the  demurrer  must  be  overruled.  If  there  be  a 
single  count  containing  several  breaches,  any  one  of  which  is 
well  assigned,  that  is  sufficient  to  maintain  the  action.  If  there 
be  a  single  count  containing  a  demand  of  several  matters  which 
in  their  nature  are  divisible,  any  one  of  which  is  well  claimed, 
that  is  sufficient.  Whether  the  objection  be  that  one  of  several 
counts,  or  that  one  of  several  breaches,  or  that  part  of  plaintiff's 
demand  which  is  of  a  distinct  and  divisible  nature,  is  bad,  the 
demurrer  should  be  to  that  count,  or  to  that  breach,  or  to  that 
part  of  the  demand,  as.  the  case  may  be,  which  is  bad."13 

It  will  be  seen  later14  that  certain  .causes  of  action,  for  exam- 

11.  Code,  §  3271. 

12.  Miller  v.   McLuer,  Gilmer  338;   Henderson  v.  Stringer,  6  Gratt. 

130;  Portsmouth  R.  Co.  v.  Oliver  R.  Co.,  109  Va.  513,  64  S.  E.  56. 

13.  Henderson  v.   Stringer,   6   Gratt.   130;   Va.   N.   C.   Wheel   Co.  v. 
Harris,   103  Va.   708,   49   S.   E.  991;   Portsmouth   R.   Co.  v.   Oliver   R. 
Co.,  109  Va.  513,  64  S.   E.  56;   Smith  v.   Kanawha  County  Court,  33 
W.  Va.  713,  11  S.   E.  1;  City  of  Wheeling  v.  Black,  25  W.  Va.  266, 
and  numerous  other  cases  in  Va.  and  W.  Va.  cited  in  4  Digest  Va. 
and  W.  Va.   (West  Pub.  Co.)   7324-7327. 

14.  Post,  §  205. 


342  DEMURRER  §    203 

pie,  tort  and  contract,  cannot  be  joined  in  the  same  action.  Here 
each  count  of  the  declaration  may  ,be  perfect  in  itself  and  yet 
the  pleader  is  attempting  to  do  that  which  is  forbidden.  Where 
this  is  the  nature  of  the  objection  ,the  demurrer  should  be  to  the 
declaration  as  a  whole,  as  the  objection  is  no  more  to  one  count 
than  another.  The  objection  is  to  the  misjoinder  of  causes  of 
action,  and  this  can  only  be  discovered  by  looking  at  the  different 
counts  at  the  same  time.15  The  proper  form  of  demurring, 
therefore,  to  a  declaration  containing  more  than  one  count,  or 
assigning  more  than  one  breach,  is  to  demur  to  the  declaration 
as  a  whole  and  to  each  count  thereof,  or  to  each  breach  assigned, 
for  the  demurrer  to  the  declaration  as  a  whole  will  reach  the 
misjoinder,  if  any,  of  causes  of  action,  and  the  demurrer  to  each 
count  or  to  each  breach  will  throw  out  those  that  are  defective 
in  substance.  As  to  what  the  judgment  should  be  and  the  ef- 
fect thereof,  see  post,  §  208. 

§   203.   Election  to  demur  or  plead. 

At  common  law  a  defendant  could  make  but  one  answer  of 
either  law  or  fact  to  the  plaintiff's  declaration,  and  at  subsequent 
stages  of  the  pleading  neither  party  could  make  but  one  reply 
to  the  antecedent  pleading,  and  that  might  be  of  either  law  or 
fact,  but  not  both.  Hence  it  became  necessary  for  the  pleader,  in 
every  instance,  to  determine  whether  that  answer  should  be  one 
of  law  (demurrer)  or  of  fact.  The  considerations  which  would 
determine  the  action  of  the  pleader  are  set  forth  in  Stephen  on 
Pleading  in  §  143,16  and  they  need  not  be  here  repeated,  as 
nearly  or  quite  all  of  the  objections  to  pleadings  will  be  cured 
by  pleading  over  without  demurrer,  by  verdict,  or  by  the  stat- 
ute, of  jeofails.17  In  Virginia  a  defendant  may  plead  as  many 
several  matters  of  law  or  fact  as  he  deems  necessary18  and  if  he 
demurs  and  his  demurrer  is  overruled  he  may  still  plead  to  is- 

15.  Henderson   v.    Stringer,   6    Gratt.    130;    Gary   v.   Abingdon    Pub 
Co.,  94  Va.  775,  27  S.  E.  595;  1   Rob.   Pr.   (old)   284. 

16.  Andrews,  2nd  edition. 

17.  See  post,  §  207. 

18.  Code,  §  3264.      In   W.    Va.    there    may    not    only     be     several 
pleas,  but  several  replications  to  special  pleas.     Code   (1906),  §  3840. 


§    203  ELECTION  TO  DEMUR  OR  PLEAD  343 

sue,19  so  that  at  this  stage  of  the  pleading  he  is  not  put  to  any 
election,  but  this  applies  only  to  the  defendant's  first  pleading  to 
the  plaintiff's  declaration.  At  all  subsequent  stages  the  com- 
mon-law rule  prevails.20  It  then  becomes  necessary  for  the 
pleader  to  determine  what  course  he  will  pursue.  A  practice  has 
grown  up  in  Virginia,  which  has  been  sanctioned  by  the  Court 
of  Appeals,  of  neither  demurring  nor  replying  to  the  pleading, 
but  of  objecting  to  the  pleading  when  offered,  or,  if  already  in, 
of  moving  to  strike  it  out,  for  just  such  causes  as  might  have 
been  assigned  on  demurrer.  If  the  motion  is  refused  a  bill  of 
exception  is  filed  and  the  ruling  of  the  trial  court  may  be  re- 
viewed on  a  writ  of  error,  whereas  if  a  demurrer  had  been  filed 
and  overruled  the  pleader  would  have  been  compelled  to  with- 
draw his  demurrer  and  ask  liberty  to  reply,  and  the  ruling  on 
the  demurrer  could  not  be  reviewed  on  a  writ  of  error,  as  the 
record  would  show  that  the  demurrer  had  been  withdrawn. 

The  proceeding  by  motion  to  reject  when  offered,  or  to  strike 
out  a  pleading  which  has  already  been  received,  thus  possesses 
a  marked  advantage  over  a  demurrer.21  In  practice,  when  a  de- 
murrer is  filed  there  is  full  argument  before  the  trial  judge  and 
he  actually  decides  on  the  sufficiency  of  the  demurrer,  and  if 
he  overrules  it,  and  the  demurrant  is  unwilling  to  risk  his  case 
on  the  demurrer  but  wants  a  trial  on  the  merits,  he  is  allowed 
to  withdraw  his  demurrer  and  reply  to  the  antecedent  pleading, 
and  then  proceeds  with  the  trial  on  its  merits.  The  record  sim- 
ply shows  that  the  court  intimating  an  opinion  adverse  to  the 
demurrant,  on  his  motion,  he  has  liberty  to  withdraw  his  de- 
murrer and  reply  to  the  antecedent  pleading,  whereupon  he 
withdraws  his  demurrer  and  files  such  a  replication,  or  rejoinder, 
etc.  It  shows  nothing  of  the  argument  and  actual  decision  of  the 
demurrer.  This  practice  of  withdrawing  the  demurrer  and  re- 
plying in  fact  has  become  so  firmly  established  as  to  be  a  matter 

19.  Code,  §  3264. 

20.  Ches.   &  O.  R.  Co.  v.  Amer.   Exch.  Bank.  92  Va.  495.  23  S.   E. 
935. 

21.  Va.  F.  &  M.  Ins.  Co.  v.  Buck  &  Newsom,  88  Va.  517,  13  S.  E- 
973;  1  Va.  Law  Reg.  827,  note  by  Judge   Burks;  Ches.  &  O.   R.  Co. 
v.  Rison,  99  Va.  18,  37  S.  E.  320. 


344  DEMURRER  §    204 

of  right.22  The  record  showing  the  withdrawal  of  the  demurrer, 
the  appellate  court,  of  course,  cannot  review  the  action  of  the 
trial  court  in  overruling  it.  The  record  imports  absolute  verity 
and  cannot  be  disputed,  hence  the  demurrer  was  not  passed  on, 
but  was  withdrawn,for  so  the  record  states.  Even  where  the 
record  does  not  show  the  withdrawal  of  the  demurrer,  but  shows 
the  demurrer  and  the  ruling  of  the  trial  court  thereon,  and  then 
a  replication,  it  has  been  held  that  the  demurrer  must  be  deemed 
to  have  been  withdrawn.23 

In  West  Virginia  by  statute24  a  plaintiff  may  reply  several 
matters  of  fact,  but  he  cannot  both  demur  and  reply.  If  his  de- 
murrer to  a  plea  be  overruled,  leave  to  withdraw  the  demurrer 
will  be  conceded  as  of  course  and  an  answer  in  point  of  fact  then 
allowed.  If  he  both  demurs  and  replies  in  fact  he  will  be 
deemed  to  have  withdrawn  his  demurrer  as  he  had  no  right 
both  to  demur  and  to  reply.25 

It  will  be  seen  later26  that  if  a  pleading  states  no  ground  of 
action  or  defence  at  all,  the  defect,  as  a  general  rule,  is  not  cured 
by  taking  issue  on  it,  but  appearing,  as  it  does,  on  the  face  of 
the  record,  advantage  may  be  taken  of  it  by  a  motion  in  arrest 
of  judgment  in  the  trial  court,  or  on  writ  of  error  from  the  ap- 
pellate court.  This  is  one  of  the  few  instances  where  no  right 
or  advantage  is  lost  by  a  failure  to  demur  when  the  pleader 
might  have  safely  done  so. 

§   204.   Who  may  demur. 

No  person  not  a  party  to  the  action  can  file  a  demurrer  or  any 
other  pleading  therein,  nor  can  a  party  demur  unless  his  inter- 
ests are  affected  by  the  pleading  demurred  to.  Independently  of 
statute,  therefore,  if  two  persons  be  joined  as  defendants  and 
the  declaration  sets  forth  a  good  cause  of  action  against  one  but 

22.  Stanton  v.  Kensey,  151  111.  301;  Camden  Clay  Co.  v.  New  Mar- 
tinsville,  —  W.  Va.  — ,  68   S.   E.   118. 

23.  Ches.  &  O.  R.  Co.  v.  Bank,  92  Va.  495,  23  S.  E.  935;  Camden 
Clay  Co.  v.  New  Martinsville,  —  W.  Va.  — ,  68  S.  E.  118. 

24.  W.   Va.   Code,   1906,   §   3840. 

25.  Camden  Clay  Co.  v.  New  Martinsville,  —  W.  Va.  — ,  68  S.   E. 
118. 

26.  Post,    §    207. 


§   205  CAUSES  OF  DEMURRER  345 

not  against  the  other,  the  latter  only  should  demur,  and  if  a 
joint  demurrer  is  filed  by  both  it  should  be  overruled.  If  sev- 
eral defendants  be  joined  in  a  declaration  showing  several  causes 
of  action  against  each  but  no  joint  cause  of  action  against  all, 
the  demurrer  may  be  joint,  or  several.27  For  a  misjoinder  of 
plaintiffs  there  may  be  a  joint  demurrer  by  all  the  defendants.28 
Misjoinder  of  either  plaintiffs  or  defendants,  however,  is  not  a 
ground  of  demurrer  in  Virginia,  but  the  proper  remedy  is  a 
motion  to  abate  as  to  the  parties  improperly  joined.29  The  stat- 
ute provides  that  wherever  it  shall  appear  "by  the  pleadings  or 
otherwise,  that  there  has  been  a  misjoinder  of  parties,  plaintiff 
or  defendant,  the  court  may  order  the  action  or  suit  to  abate  as 
to  any  party  improperly  joined,  and  to  proceed  by  or  against 
the  others  as  if  such  misjoinder  had  not  been  made,  and  the 
court  may  make  such  provision  as  to  costs  and  continuances  as 
may  be  just."30  The  word  "may"  in  the  clause  "the  court  may 
order  the  action  or  suit  to  abate"  means  "shall."31 

§   205.    Causes  of  demurrer. 

At  common  law  all  pleadings  had  to  be  good  in  form  as  well 
as  substance.  The  sufficiency  in  substance  was  determined 
solely  by  the  substantive  law,  while  sufficiency  in  form  was  de- 
termined by  the  rules  and  principles  of  pleading.  Now  objec- 
tions of  form,  except  as  to  dilatory  pleas  which  are  not  favored, 
are  seldom,  if  at  all,  available.  It  is  provided  by  statute  in  Vir- 
ginia that  "no  action  shall  abate  for  want  of  form,  where  the 
declaration  sets  forth  sufficient  matter  of  substance  for  the  court 
to  proceed  upon  the  merits  of  the  cause."32  The  distinction  be- 
tween what  is  mere  matter  of  form  and  what  is  substance  has 
been  pointed  out  as  follows:  "If  the  matter  pleaded  be  in  itself 
insufficient  without  reference  to  the  manner  of  pleading  it,  the 
defect  is  substantial;  but  if  the  only  fault  is  in  the  form  of  al- 

27.  See   Langhorne   r.    Richmond,   etc.,   Ry.   Co.,   91   Va.    369,   22   S. 
E.  159. 

28.  6  Encl.  PI.  &  Pr.  310-313,  and  cases  cited. 

29.  Riverside  Cotton  Mills  v.  Lanier,  102  Va.  148,  45  S.  E.  875. 

30.  Code   (1904),  §  3258a;  Acts  1893-'4,  p.  489;  Acts   1895-'6,  p.  543. 

31.  Lee  v.  Mut.  Reserve  Fund  Ass'n,  97  Va.  160,  33  S.  E.  556. 

32.  Code   (1904),  §  3246. 


346  DEMURRER  §    205 

leging  it,  the  defect  is  but  formal."33  Whether  a  pleading  sets 
forth  a  good  cause  of  action  or  defence  is  now  determined  solely 
by  the  substantive  law. 

If  the  pleading  asserts  some  right  protected  by  the  substantive 
law,  and  the  circumstances  which  give  rise  to  that  right  are 
stated  with  reasonable  certainty,  the  pleading  is  good,  regard- 
less of  its  form.  If  it  fails  in  these  particulars  it  is  bad,  and 
the  proper  mode  of  testing  its  sufficiency  is  by  demurrer.  The 
test  of  the  sufficiency  of  every  declaration  is,  does  it  state  a  case, 
and  does  it  state  the  facts  with  sufficient  certainty  to  be  under- 
stood by  the  defendant  who  is  to  answer  it,  the  jury  who  are  to 
try  the  issue,  and  the  court  which  is  to  render  judgment.  The 
question  always  is:  Assuming  the  allegations  of  the  declaration 
to  be  facts,  has  any  right  of  the  plaintiff,  which  the  substantive 
law  protects,  been  violated  by  the  defendant?34  The  same  or  a 
similar  test  applies  to  all  the  subsequent  pleadings.  The  causes  of 
demurrer  being  determined,  therefore,  by  the  substantive  law, 
no  complete  enumeration  of  them  can  be  given,  but  some  of  the 
most  common  causes  of  a  general  demurrer  to  a  declaration  are 
the  following: 

1.  That  the  declaration  does  not  allege  any  duty  owing  by 
the  defendant  to  the  plaintiff  which  has  been  violated  by  the  de- 
fendant.    The  declaration  should  allege  such  duty,  or  the  facts 
from  which  the  duty  arises,  and  its  breach,  and  should  allege 
the  facts  with  such  reasonable  certainty  and  particularity  as  will 
apprise  the  defendant  of  the  nature  of  the  demand  made  upon 
him,  so  that  he  may  intelligently  concert  his  defence.     A  state- 
ment of  a  cause  in  general  terms,  or  general  averments  of  neg- 
ligence on  the  part  of  the  defendant  which  fall  short  of  these 
requirements,  is  not  sufficient.35 

2.  That  a  declaration  or  count  in  an  action  of  tort  for  the 
negligence  of  the  defendant  shows  on  its   face  such  contribu- 

33.  Gould  PI.,  Ch,  IX,  §  18. 

34.  Lane    Bros.    v.    Seakford,    106    Va.    93,    55    S.    E.    556,    and    cases 
cited;    Blackwood   Coal   Co.   v.  James,   107   Va.   656,   60   S.    E.   90. 

35.  Hortenstein  v.  Va.-Car.   R.  Co.,  102  Va.  914,  47  S.   E.  996;  Nor- 
folk &  W.  R.  Co.  v.  Gee,  104  Va.  806,  52  S.  E.  572;  Lynch.  Traction 
Co.   v.   Guill,   107  Va.   86,   57   S.    E.   644. 


§    205  CAUSES  Of  DEMURRER  347 

torv  negligence  on  the  ,part  of  the  plaintiff  as  bars  recovery.36 
In  Virginia,  and  in  nearly  all  of  the  other  states,  a  plaintiff  is 
not  required  to  negative  contributory  negligence  in  his  declara- 
tion, though  he  is  in  a  few  states.37  When  not  so  required,  of 
course,  the  absence  of  such  a  negative  averment  is  no  ground  of 
demurrer. 

3.  That  the  plaintiff  has  mistaken  his  form  of  action,  as  for 
instance  he  has  sued  in  trespass  when  he  should  have  sued  in 
case,  or  in  covenant  when  he  should  have  sued  in  assumpsit.38 

4.  That  there  is  a  misjoinder  of  causes  of  action,  as  where 
some  counts  are  in  tort  and  others  are  in  contract.    If  no  amend- 
ment is  made  by  striking  out  some  of  the  counts  so  as  to  render 
the  declaration  harmonious,  the  defect  is  fatal,  and  the  action 
will  be  dismissed,  but  such  amendment   should  be  allowed,  if 
asked.     In  some  states  the  amendment  will  not  be  permitted.39 
The  rule  as  to  misjoinder,  above  stated,  is  otherwise  under  code 
practice  if  the  causes  of  action  have  a  common  origin  in  one 
transaction,  or  in  transactions  connected  with  the  same  subject 
of  action.40 

5.  That  there  is  a  non-joinder  of  either  plaintiffs  or  defend- 
ants in  cases  ex  contractu,  when  apparent  on  the  face  of  the  dec- 
laration.41 

6.  The  misjoinder  of  either  plaintiffs  or  defendants  when  ap- 
parent on  the  face  of  the  declaration  was  ground  for  demurrer 
at  common  law,  but  is  no  longer  so  in  Virginia;  the  property 
remedy    being  a    motion  to    abate    as  to  the  party    improperly 
joined.42 

7.  The  want  of  jurisdiction  of  the  subject  matter  in  the  court 

36.  Dunn  v.  Railway  Co.,   78  Va.  645. 

37.  5   End.   PI.   &   Pr.   1. 

38.  Jordan  v.   Wyatt,  4   Gratt.   151;   Wolf  v.   Violett,   78  Va.  57. 

39.  See  post,  §  208;   Gary  v.  Abingdon  Pub.  Co.,  94 'Va.  775,  27  S. 
E.  595;   Penn.   R.   Co.  v.   Smith,   106  Va.  645,  56  S.   E.  567;   Dunn  v. 
Penn.   R.   Co.,   67   N.   J.   Law   377,   51   Atl.  465;   Wilkins  v.   Standard 
Oil  Co.   (N.  J.),  59  Atl.  14;  King  and  Morris   (N.  J.),  62  Atl.  1006. 

40.  Phillips'  Code  PL,  §  199. 

41.  Stephen  PL,  §§  33,  35. 

42.  Code,   §   3958;   Lee  v.   Mut.   Ins.   Co.,   97   Va.   160,   33   S.   E.   556; 
Riverside  Cotton  Mills  v.   Lanier,  102  Va.  148,  45  S.  E.  875. 


348  DEMURRER  §    205 

in  which  the  action  is  brought  may  also  be  raised  by  demurrer.43 
"By  jurisdiction  over  the  subject  matter  is  meant  the  nature  of 
the  cause  of  action  and  of  the  relief  sought;  and  this  is  con- 
ferred by  the  sovereign  authority  which  organizes  the  court,  and 
is  to  be  sought  for  in  the  general  nature  of  its  powers,  or  in  au- 
thority especially  conferred."44  Want  of  jurisdiction  of  the 
subject  matter  may  even  be  taken  notice  of  by  an  appellate  court 
ex  mero  motu  for  the  first  time.45  This  is  not  true,  however,  of 
jurisdiction  over  parties,  for  while  a  party  can  only  be  sued  in 
certain  designated  jurisdictions,  this  provision  is  made  for  his 
benefit,  and  he  may  waive  it,  and  will  be  held  to  have  waived  it 
unless  he  makes  seasonable  objection,  and,  if  the  court  would 
otherwise  have  jurisdiction  of  the  subject  matter,  it  may  pro- 
ceed to  final  judgment. 

8.  The  constitutionality  of  an  act  under  which  an  action  is 
brought  may  likewise  be  raised  by  general  demurrer.46     As  will 
be  seen  later47  the  plaintiff,  by  instituting  his  action,  in  effect, 
avers  the  existence  of  a  law  conferring  a  right  which  he  is  now 
seeking  to  assert,  so  that  the  defect  impliedly  appears  on  the 
face  of  the  record.     In  order,  however,  to  confer  jurisdiction  on 
the  Court  of  Appeals  on  the  ground  that  a  constitutional  ques- 
tion is  involved,  it  must  appear  in  some  way  that  the  constitu- 
tionality of  the  law  was  called  in  question  and  decided  by  the 
trial  court.48 

9.  In  case  of  slander  or  libel  it  must  be  stated  whether  the 
words  charged  are  counted  on  simply  as  insults  under  the  stat- 
ute, or  as  slanderous  at  common  law.    If  it  appears  that  the  ac- 
tion   is    founded   on   the    statute49    it  is    therein   provided   that 
no  demurrer  shall  preclude  a  jury  from  passing  thereon,  though 

43.  Nelson  v.  Ches.  &  O.  R.  Co.,  88  Va.  971,  14  S.  E.  838;  Legum 
v.  Blank  (Md.),  65  Atl.  1071. 

44.  Cooper  v.   Reynolds,   10  Wall.   308. 

45.  South    &   W.     R.     Co.    v.    Com'th,     104    Va.   314,   51    S.    E.   824; 
Hanger  v.  Com.,   107  Va.  872,  60  S.   E.  67. 

46.  Adkins  v.  City  of  Richmond,  98  Va.  91,  34  S.  E.  967. 

47.  Post,    §    206. 

48.  Hulvey  r.   Roberts,  106  Va.  189,  55   S.   E.  585. 

49.  Code,   §   2897. 


§    205  CAUSES  OF  DEMURRER  349 

this  provision  may  be  waived.50  If  it  does  not  so  appear,  then 
the  action  is  for  slander  or  libel  at  common  law,  and  a  demurrer 
lies  as  at  common  law.51 

10.  If  a  sealed  instrument  is  declared  on  and  it  is  not  prop- 
erly described  in  the  declaration  the  defendant  may  wait  until 
it  is  offered  in  evidence  and  object  to  its  reception  on  account 
of  the  variance,  or  he  may  crave  over  of  it,  which  makes  it  a 
part  of  the  declaration  as  fully  as  if  copied  into  it,  and  then  de- 
mur on  account  of  the  variance.  In  this  way  the  discrepancy 
between  the  instrument  as  it  really  is  and  as  it  is  described  in 
the  declaration  is  made  to  appear.52 

Objection  to  a  deed  void  on  its  face  may  be  taken  in  the  same 
manner.  But  if  the  action  is  founded  on  an  unsealed  instru- 
ment not  made  a  part  of  the  record,  it  cannot  be  looked  to  in 
order  to  disclose  a  variance,  on  a  demurrer  to  the  declaration.53 
It  may  be  well,  in  this  connection,  to  recollect  that  for  a  variance 
between  a  declaration  and  the  writ  the  remedy  is  by  craving 
over  of  the  writ  and  pleading  the  variance  in  abatement.54 
Amendments  are  freely  allowed  in  all  the  cases  mentioned  in 
this  paragraph,  and  the  objections  are,  therefore,  of  little  prac- 
tical use,  except  to  secure  an  accurate  record  that  may  be 
pleaded  in  bar  of  another  action  for  the  same  cause. 

A  party  may  plead  nul  tie!  record,  and  if,  upon  inspection  by 
the  court,  the  record  is  not  such  as  is  described  in  the  pleadings, 
he  will  have  judgment:  or  he  may  crave  over  of  the  record, 
which  makes  the  record  a  part  of  the  pleadings  in  that  case,  and 
when  it  is  spread  upon  the  record  by  oyer,  if  the  party  admits 
that  the  record  of  which  oyer  is  given  him  is  a  true  record  and 
relies  upon  the  fact  that  it  does  not  support  the  pleadings,  he 
should  not  deny  that  there  is  such  a  record  by  plea,  but  should 
demur  for  the  variance.  If  he  wishes  to  deny  the  verity  of  the 
record  of  which  oyer  is  given,  he  should  then  plead  nul  tiel  rec- 
ord after  oyer.55 

50.  Brown  v.  Norfolk  &  W.  R.  Co.,  100  Va.  619,  624.  42  S.  E.  664. 

51.  Hogan  7'.  Wilmoth,  16  Gratt.  80.  • 

52.  Stephen    PI.   §   111,   and   notes. 

53.  Norfolk   &  W.   R.  Co.  r.  Sutherland,  105  Va.  545,  54  S.  E.  465. 

54.  Code,  §  3259. 

55.  Wood  7'.   Com.,   4   Rand.   329. 


350  DEMURRER  §    205 

| 

11.  Duplicity  in   a  declaration  or  other  pleading  is  a  matter 
of   form,   and   at   common   law  objection   on   that   account   was 
made  by  special  demurrer,  but  since  the  abolition  of  special  de- 
murrers   (except  as  to  pleas  in  abatement)   it  is  no  ground  of 
demurrer  to  a  declaration  in  Virginia  and  West  Virginia.56     In 
Maryland  and  Vermont,  and  probably  in  other  States,  objection 
to  a  pleading   for   duplicity  may   still  be  taken  by   demurrer,57 
while  in  New  Jersey  it  is  said  that,  under  statutory  practice,  it 
must  be  taken  by  a  motion  to  strike  out.58     It  must  be  borne  in 
mind,  however,  that  in  Virginia  pleas  in  abatement  (all  dilatory 
pleas)  are  not  favored,  and  that  they  must  be  good  in  form  as 
well  as  substance,  and  that  as  to  these  duplicity  is  a  defect  which 
may  be  taken  advantage  of  by  demurrer.59 

12.  The  defence  of  the  statute  of  limitations  ordinarily  can- 
not be  made  by  demurrer,  but   where  the   limitation   is   of  the 
right  and  not  merely  of  the  remedy,  the  declaration  must  show 
affirmatively  on  its  face  that  the  action  was  commenced  within 
the  time  prescribed  by  the  statute  or  else  it  will  be  bad,  and  the 
objection    may    be    taken    by    demurrer.60      Attention    is  again 
called  to  the  fact  that  neither  the  affidavit  filed  with  a  plea  which 
is  required  to  be  verified,  nor  the  bill  of  particulars  filed  with  a 
declaration  is  any  part  of  the  declaration,    and    hence    defects 
therein  cannot  be  raised  by  demurrer.61 

56.  So.   Ry.   Co.  v.   Blanford,  105   Va.  373,  54  S.   E.  1;   So.   Ry.  Co. 
v.   Simmons,   105   Va.   651,   55   S.   E.   459;    Martin   v.   Monongahela   R. 
Co.,  48  W.  Va.  542,  37  S.   E.  563;   Poling  v.  Maddox,  41   W.   Va.  779, 
24    S.    E.    999.      The    case    last    cited    holds    that    it    is    not    only    no 
ground    of     demurrer,    but    no    ground    of    objection   to   any   plead- 
ing.      A     different     view,     however,     is     taken     in     Virginia,    where 
it  is   held,   in   passing  on   the   sufficiency   of  a  pica,  that  a   motion  to 
strike   out   or   reject   can  be  used   to   obviate   objections    to   pleadings 
such   as   duplicity  and   the   like   which    cannot   now   be   raised   by   de- 
murrer.    Ches.  &  O.  R.  Co.  v.  Rison,  99  Va.  18,  37  S.   E.  320. 

57.  Milske  v.  Steiner  Mantel  Co.,  103  Md.  235,  63  Atl.  471;   Lewes 
v.  John  Crane   &  Son,   78  Vt.   216,  62  Atl.   60. 

58.  Karnuff  v.   Kelch,   69    N.  J.    Law   499,   55   Atl.   163. 

59.  Guarantee  Co.  v.   Bank,  95   Va.  480,  28   S.   E.  909. 

60.  Lambert  v.  Ensign  Mfg.  Co.,  42  W.  Va.  813,  26  S.  E.  431;  The 
Harrisburg,  119  U.  S.   199;   Manuel  v.   Norfolk  &  W.   R.  Co.,  99  Va. 
188,  37   S.   E.   957;   3   Va.   L.   Reg.   63. 

61.  Ante,  §   201. 


§   206  EFFECT    OF    DEMURRER  351 

§  206.  Effect  of  demurrer. 

A  demurrer  questions  the  sufficiency  in  law  of  the  pleading 
to  which  it  is  interposed;  and  this  question  of  law  is  to  be  de- 
cided by  the  court. 

First. — It  is  one  of  the  fundamental  principles  of  the  common 
law  system  of  pleading  that  every  material  fact  not  denied  by 
the  pleadings  is  to  be  taken  as  admitted;  hence,  as  a  demurrer 
does  not  deny  any  fact,  it  is  a  rule  that  a  demurrer  admits  as 
true  all  averments  of  material  facts  which  are  sufficiently 
pleaded?2  The  admission  is  made  not  by  the  demurrer  but  by 
a  failure  to  deny  them.  The  effect,  however,  is  the  same.  This 
implied  admission  is  made  only  for  the  purposes  of  the  demurrer, 
and  if  the  demurrer  is  overruled  and  the  pleader  permitted  to 
tender  an  issue  of  fact,  the  admission  cannot  be  used  against 
him,  on  the  trial  of  that  issue.63  At  common  law  the  facts  had 
to  be  sufficiently  pleaded  both  as  to  form  and  substance,  but  at 
present  the  latter  alone  is  required.  It  is  to  be  observed  further 
that  the  admission  is  only  as  to  facts,  and  that  a  demurrer  does 
not  admit  the  pleader's  inferences  or  conclusions  of  law  such  as 
an  allegation  •  that  defendant's  acts  are  "without  right"  and  that 
the  plaintiff  will  suffer  "irreparable  injury."  The  court  deter- 
mines for  itself  the  effect  of  the  facts  alleged.64  The  demurrer 
does  not  admit  as  true  what  the  court  knows  judicially  is  untrue 
or  contrary  to  law,  nor  what  is  legally  or  physically  impossible.63 

Second. — "It  is  a  rule  that,  on  a  demurrer,  the  court  will  con- 
sider the  zvhole  record,  and  give  judgment  for  the  party  who,  on 

62.  Stephen  PI.,  §  165. 

63.  6    Encl.    PI.    &    Pr.    334,    and    cases    cited;    Martin's    Civil    Pro., 
§  239. 

64.  Williams   v.    Mathewson,   73    N.    H.    242,    60   Atl.    687;    Marples 
r.  Standard  Oil  Co.,  71   N.  J.   Law  352,  59  Atl.  32;   Newberry  Land 
Co.  v.  Newberry.  95  Va.   119,  27  S.   E.  899;   Coughlin  v.   Knights  of 
Columbus,  79  Conn.  218,  64  Atl.  223;   Lindley  v.   Miller,  67   111.  244. 
An  allegation  that  bonds  were  issued  "according  to  law"  is  the  plead- 
er's construction,  inference  or  conclusion  and  is  not  admitted  by  a 
demurrer.     See  Smith  r.  Henry  Co.,  15  Iowa  385.     So  an  allegation 
that  a   defendant   "improperly   stored   dynamite   caps"   is   a   pleader's 
conclusion.     Eaton  r.  Moore,  111  Va.  400,  69  S.  E.  326. 

65.  Ches.  &  O.  R.  Co.  v.  Anderson,  93  Va.  650,  25  S.  E.  947. 


352  DEMURRER  §  206 

the  zt«hole,  appears  to  be  entitled  to  it."*Q  The  reason  of  this 
rule  is  this:  Every  judgment  is  the  conclusion  of  law  from 
all  the  facts  of  the  case,  and  the  court,  to  ascertain  these,  must 
look  through  the  whole  pleadings.  Every  judgment  is  the  con- 
clusion of  a  perfect  syllogism  of  which  the  law  is  the  major 
(though  unexpressed),  and  the  fact  the  minor,  premise. (:7  The 
pleader  must  at  each  stage  bring  himself  within  this  major  prem- 
ise, or  else  his  pleading  is  bad,  and  it  is  incumbent  on  the  judge 
to  review  the  pleadings  to  ascertain  whether  or  not  the  pleader 
has  complied  with  these  requirements,  else  he  might  enter  an 
erroneous  judgment.  Let  us  illustrate :  Suppose  A  sues  B  in 
debt  on  a  bond,  and  the  following  pleadings  ensue : 

A  (Declaration)      You  owe  me  $500  due  by  bond. 

B   (Plea)  You  released  me  by  writing  under  seal. 

A  (Replication)  I  delivered  the  release  to  you  on  condition 
that  you  would  get  X  to  release  me 
from  my  bond  to  her  for  a  like  amount. 

B  (Rejoinder)  I  procured  the  release  from  X  and  de- 
livered it  to  you. 

A  (Sur-rejoinder)  X  was  a  married  woman  at.  the  time  she 
executed  the  release,  and  therefore  her 
release  is  void. 

B  demurs,  thereby  admitting  that  X  was  a  married  woman 
when  she  executed  the  release,  but  denying  the  legal  effect 
thereof. 

If  these  pleadings  took  place  at  common  law,  and  the  court 
looked"  only  to  the  sur-rejoinder  of  A  and  the  demurrer  of  B, 
it  would  be  compelled  to  give  judgment  against  B,  for  the  only 
issue  presented  by  these  two  pleadings  is  whether  a  married  wo- 
man could  execute  a  valid  release  under  seal,  and  the  court,  seeing 
that  the  release  is  void,  must  give  judgment  in  favor  of  A.  But 
if  the  court  reviews  all  the  pleadings,  it  will  discover  at  a  glance 
that  such  a  judgment  would  be  manifestly  wrong,  for  A. 
could  hot  deliver  in  escrow  a  release  to  B.  himself.  The  de- 
livery is  valid  -and  the  condition  void,  hence  the  release  to  B 

66.  This    rule    does   not   apply   to    a    motion  to  strike  out  or  reject  a 
plea.     Ches.  &  O.   R.  Co.  v.  Rison,  99  Va.  18,  37  S.   E.  320. 

67.  Tucker  PI.,  18,  19,  45. 


§    206  EFFECT   OF  DEMURRER  353 

was  delivered  unconditionally  and  the  judgment  should  be  in 
his  favor.68 

It  is  sometimes  said  that  the  court  reviews  the  whole  record 
and  gives  judgment  against  the  party  committing  the  first  fault.69 
In  the  above  illustration,  A  committed  the  first  fault  by  averring 
that  he  delivered  to  B  in  escrow  the  release  which  he  had  made 
to  him.  The  "whole  record"  means  all  of  the  pleadings  from  the 
declaration  to  the  demurrer. 

To  the  above  rule  there  are  some  qualifications  and  excep- 
tions : 

1.  The  rule  has  no  application  to  a  demurrer  to  a  plea  in 
abatement.     Such  pleas  are  not  favored,  and  the  court  will  not 
inquire  as  to  the  sufficiency  of  the  declaration,  but  if  the  de- 
murrer is  sustained  will  render  judgment  of  respondeat  ouster™ 

2.  Though  the  whole  record  show  an  apparent  right  in  the 
plaintiff,  the  court  will  not  adjudge  in  his  favor  if  he  has  not 
put  his  action  on  that  ground.71 

3.  If  there  be  a  demurrer  to  the  whole  declaration  which  con- 
tains more  than  one  count,  the  demurrer  should  be  overruled  if 
there  is  any  good  count  in  it. 

So  if  the  declaration  contains  more  than  one  count,  and  the 
plea  is  pleaded  to  the  whole,  and  not  to  the  several  counts,  a 
demurrer  to  the  plea  should  be  overruled  if  there  is  any  good 
count  in  the  declaration,  as  the  demurrer  operates  as  a  demurrer  to 
the  declaration  as  a  whole.  If  the  plea  be  pleaded  to  one  or 
more  separate  counts  of  the  declaration,  a  demurrer  to  the  plea 
operates  as  a  demurrer  to  the  separate  count  or  counts,  and,  if 
defective,  the  demurrer  should  be  sustained  and  the  count  or 
counts  stricken  out.  The  plaintiff's  demurrer  to  the  defendant's 
plea  cannot  operate  as  a  demurrer  to  the  declaration  to  any  other 
or  greater  extent  than  the  plea  was  pleaded  to  the  declaration.72 

4.  The  court  in  reviewing  the  pleadings  on  a  demurrer  will 

68.  Tucker  PI.,  45. 

69.  Ches.  &  O.  R.  Co.  v.  Rison,  99  Va.  18,  37  S.  E.  320;   Doolittle 
r.  Co.  Ct.,  28  W.  Va.  159;  Smith  v.  Lloyd,  16  Gratt.  295. 

70.  Stephen    PI.,    §    140;    Smith   v.    Lloyd,    16    Gratt.    295;    Birch   r. 
King  (N.  J.),  59  Atl.  11. 

71.  Stephen   PI.,  §  140. 

72.  Smith  r.   Lloyd,  16  Gratt.  295. 

—23 


354  DEMURRER  §  207 

only  consider  the  right  in  matter  of  substance  and  not  in  re- 
spect of  mere  form,  such  as  should  have  been  the  subject  of 
special  demurrer.73 

5.  A  demurrer  to  special  pleas  filed  along  with  the  general 
issue  will  not  reach  back  to  defects  in  the  declaration  unless  the 
declaration  is  so  substantially  defective  as  not  to  be  good  after 
verdict.74 

§  207.  Effect  of  failure  to  demur — Pleading  over. 

All  defects  apparent  on  the  face  of  the  pleadings  are  waived 
by  a  failure  to  demur  except  such  substantial  defects  as  are  not 
cured  by  pleading  over,  by  verdict,  or  by  the  statute  of  jeofails, 
or  which  show  a  complete  absence  of  a  cause  of  action,  or  a 
want  of  jurisdiction  over  the  subject  matter.75 

It  is  pointed  out  by  Stephen  that  the  effect  of  a  demurrer  is 
to  admit  the  tfuth  of  all  statements  of  facts  well  pleaded,  but  the 
converse  is  not  true  that  a  failure  to  demur  admits  the  sufficiency 
in  law  of  the  facts  adversely  alleged,  and  there  are  many  cases 
where  a  party  has  pleaded  over  without  demurring  and  yet  is 
allowed  to  avail  himself  of  the  insufficiency  in  the  pleading  of 
his  adversary,76  but  the  general  rule  is  as  above  stated. 

An  illustration  of  a  defective  pleading  cured  by  pleading  over 
is  given  in  the  case  of  trespass  de  bonis  asportatis  where  the 
plaintiff  omits  the  necessary  allegation  of  possession  of  the  arti- 
cles taken.  If  the  defendant,  in  seeking  to  justify,  admits  that  he 
took  the  goods  from  the  possession  of  the  plaintiff,  he  thereby 
cures  the  defect  of  the  plaintiff's  declaration.77  As  stated  above, 
faults  in  pleading  are  also  sometimes  cured  by  verdict.  "Where 
a  matter  is  so  essentially  necessary  to  be  proved,  that,  had 
it  not  been  given  in  evidence,  the  jury  could  not  have  given 
such  a  verdict,  there  the  want  of  stating  that  matter  in  express 
terms,  provided  it  contains  terms  sufficiently  general  to  compre- 
hend it  in  fair  and  reasonable  intendment,  will  be  cured  by  a 
verdict ;  and  where  a  general  allegation  must,  in  fair  construc- 

73.  Stephen  PI.,  §  140. 

74.  6   End.    PI.    &    Pr.   332;    Stephen    PI.,   §    141,   note   2,   citing  Au- 
burn &  O.  Co.  v.  Leitch,  4  Den.  65;  Shaw  v.  Tobias,  3  N.  Y.  188. 

75.  6  Encl.  PI.  &  Pr.  372. 

76.  Stephen  PI.,  §  141. 

77.  Stephen  PI.,  §  141. 


§  207  EFFECT  OF  FAILURE  TO  DEMUR  355 

tion,  so  far  require  to  be  restricted,  that  no  judge  and  no  jury 
could  have  properly  treated  it  in  an  unrestricted  sense,  it  may 
reasonably  be  presumed,  after  verdict,  that  it  was  so  restricted 
at  the  trial."78 

Faults  cured  by  verdict  are  for  the  most  part,  however,  cov- 
ered by  the  statute  of  jeofails.  The  statute  of  jeofails  cures  a 
multitude  of  faults.  The  Virginia  Statute79  is  as  follows: 

''No  judgment  or  decree  shall  be  stayed  or  reversed  for  the 
appearance  of  either  party,  being  under  the  age  of  twenty-one 
years,  by  attorney,  if  the  verdict  (where  there  is  one),  or  the 
judgment  or  decree,  be  for  him  and  not  to  his  prejudice;  or  for 
want  of  warrant  of  attorney ;  or  for  the  want  of  a  similiter,  or 
any  misjoining  of  issue;  or  for  any  informality  in  the  entry  of 
the  judgment  or  decree  by  the  clerk ;  or  for  the  omission  of  the 
name  of  any  juror;  or  because  it  may  not  appear  that  the  ver- 
dict was  rendered  by  the  number  of  jurors /required  by  law;  or 
for  any  defect,  imperfection,  or  omission  in  the  pleadings,  which 
could  not  be  regarded  on  demurrer ;  or  for  any  other  defect,  im- 
perfection, or  omission,  which  might  have  been  taken  advantage 
of  on  a  demurrer  or  answer,  but  was  not  so  taken  advan- 
tage of." 

The  object  and  purpose  of  this  statute  was  to  prevent  a  fail- 
ure or  delay  of  justice  by  setting  aside  a  verdict  rendered  after 
a  full  hearing  on  the  merits  because  of  defects  that  might  have 
been  used  to  prevent  a  judgment,  but  were  not  so  used.  To  fur- 
ther this  end,  the  statute  should  be  liberally  construed  and  ap- 
plied, and  made  to  embrace  cases  that  are  within  its  spirit  though 
not  within  its  letter.80  On  the  other  hand,  a  case  may  be  within 
the  very  letter  of  a  statute  and  yet  not  within  its  spirit.81  And, 
in  such  case,  the  statute  should  not  be  applied,  though  it  must  be 
confessed  that  the  latter  power  is  one  to  be  cautiously  and  spar- 
ingly exercised.  Under  the  latter  branch  of  the  above  proposition 
should  be  embraced  the  case  hereinbefore  mentioned82  where  a 

78.  Jackson  z:  Pesked,  1  M.  &  S.  234,  quoted  in  Stephen  PI.,  §  142; 
Bailey  v.  Clay,  4  Rand.  346. 

79.  Code,  §  3449. 

80.  Long  t-.  Campbell,  37  W.  Va.  665,  17  S.   E.  197,  quite  full. 

81.  Holy  Trinity  Church  r.  United  States,  143  U.  S.  457. 

82.  Ante,  §  203. 


356  DEMURRER  §    207 

party  does  not  demur,  but  objects  to  the  reception  of  a  pleading 
when  it  is  offered,  or  subsequently,  but  seasonably,  moves  to 
strike  it  out.  Here  the  party  is  within  the  letter  of  the  law  and 
apparently  subject  to  its  penalty,  but  he  has  fully  complied  with 
its  spirit,  and  has  in  fact  done  all  that  the  statute  was  intended  to 
accomplish,  and  hence  should  not  be  penalized. 

It  would  be  inexpedient  to  attempt  to  enumerate  all  of  the 
cases  to  which  the  statute  has  been  applied.  Reference  to  some 
of  the  sources  of  information  on  this  subject  are  given  in  the 
margin.83 

It  is  said  that  where  the  pleading  states  a  good  case,  but  states 
it  defectively,  the  statute  applies,  and  the  judgment  should  not 
be  arrested  or  reversed,  but  the  rule  is  otherwise  if  the  pleading 
fails  to  state  any  case  at  all.84  After  verdict,  the  statute  cures  a 
defective  joinder  of  issue,  but  not  a  total  failure  to  join  any  is- 
sue at  all  (except  the  mere  absence  of  similiter  or  joinder  in  de- 
murrer, provided  for  by  statute),  and  no  judgment  or  verdict 
can  be  properly  rendered  in  the  case.85  It  has  been  held,  how- 
ever, that  where  the  only  plea  a  defendant  was  allowed  by  stat- 
ute to  file  was  a  plea  of  "not  guilty"  and  he  failed  to  file  it,  but 
the  case  was  frequently  continued  on  his  motion,  and  was  finally 
tried  by  a  jury  who  were  sworn  to  try  the  "issues  joined,"  he 
could  not,  after  verdict  and  judgment  against  him,  make  the  ob- 
jection for  the  first  time  in  the  appellate  court  that  no  issue  was 
ever  joined.  He  had  proceeded  as  if  an  issue  had  been  joined, 
had  introduced  all  of  his  evidence,  and  had  a  full  and  fair  hear- 
ing on  the  merits,  and  the  court  refused  to  set  aside  the  judg- 
ment. If  he  had  pleaded,  his  only  plea  must  have  been  "not 
guilty,"  as  the  statute  so  provided,  and  it  appeared  that  he  had 
not  been  in  any  way  prejudiced,  as  the  case  was  heard  and  de- 
cided just  as  if  the  only  plea  he  could  file  had  been  filed,  and  is- 
sue had  been  taken  thereon.86 

83.  Code   (1904),  notes  to  §  3449;  Justice's  Annotations  939-942;  4 
Digest  Va.  &  W.  Va.   (West  &  Co.),  7367-7387. 

84.  O.  A.  &  M.  R.  Co.  v.  Miles,  76  Va.  773;  Long  v.  Campbell,  37 
W.  Va.  665,  17  S.   E.  197. 

85.  Norfolk  &  W.  R.   Co.  v.   Coffey,  104  Va.   665,  51   S.   E.  729,  52 
S.    E.   367;    notes   Rowan  v.   Givens,   10   Gratt.   250,   Va.    Rep.   Anno.; 
Smith  v.  Townsend,  21   W.   Va.  486;   Code,   §  3268. 

86.  Bartlett  v.  McKinney,  28  Gratt.  750. 


§   207  EFFECT  OF  FAILURE  TO  DEMUR  357 

A  like  conclusion  was  arrived  at  where  the  proceeding  was 
by  a  motion  under  §  3211  of  the  Code,  for  a  judgment  for 
money,  and  the  only  pleas  were  non  assumpsit,  and  a  special  plea 
of  recoupment  under  §  3299  of  the  Code.  Issue  was  joined  on 
the  plea  of  non  assumpsit,  but  no  issue  was  joined  on  the  special 
plea.  The  jury  were  sworn  to  try  the  "issues  joined,"  and  they 
found  a  verdict  for  the  plaintiff.  This  the  defendant  moved  to 
set  aside,  because,  among  other  reasons,  no  replication  had  been 
filed  to  his  plea.  The' statute  (Code,  §  3300)  provides  that  every 
issue  of  fact  upon  such  a  plea  "shall  be  upon  a  general  replica- 
tion that  the  plea  is  not  true."  The  plaintiff  was  not  let  in 
to  file  a  special  replication  of  any  kind.  The  defendant  had  a 
full  and  fair  trial  on  the  merits,  made  no  objection  to  the  want 
of  a  replication,  offered  no  evidence  in  support  of  his  special 
plea,  and  was  in  no  wise  prejudiced,  and  the  court  refused  to 
reverse  the  judgment  rendered.87  In  each  of  these  cases  the 
statute  cut  off  all  special  pleadings,  and  the  missing  pleading 
was  one  to  be  filed  as  of  course  if  any  issue  of  fact  was  to  be 
raised.  The  cases  were  heard  and  decided  as  if  the  only  plead- 
ings allowed  by  law  had  been  filed. 

Text  writers  and  judges  have  frequently  said  that  the  statute 
cured  a  misjoinder  of  issue,  but  not  a  non-joinder.  The  two 
cases  last  above  mentioned,  which  seem  to  have  been  correctly 
decided  on  .principle,  show  -that  the  rule  has  been  too  broadly 
stated,  and  that  there  are  cases  of  non-joinder  which  are  cured 
by  the  statute  as  completely  as  if  there  had  been  only  a  mis- 
joinder.  These  cases  seem  to  come  within  a  general  classification 
of  cases  where  the  court  can  see  that  no  injury  could  have 
resulted  from  the  omission.88  Generally,  the  court  cannot-  see 
this,  and  hence  the  statement  of  the  rule  as  usually  made.  If 
issue  is  joined  on  an  immaterial  point  (raised  by  a  pleading 
otherwise  than  by  confession  and  avoidance)  and  a  verdict  is 
founded  thereon,  the  court  is  obliged  to  set  it  aside  and  award 
a  repleacler,  for  it  cannot  see  what  judgment  ought  to  be 
entered  on  the  merits.  So,  ordinarily,  if  no  issue  at  all  be 
joined,  it  would  be  impossible  for  the  court  to  see  that  the 

87.  Briggs  r.  Cook.  99  Va.  273,  38  S.  E.  148. 

88.  See  Southside  R.  Co.  v.  Daniel,  20  Gratt.  344. 


358  DEMURRER  §    207 

parties  did  not  ultimately  contend  over  an  immaterial  issue,  and 
hence  nothing  is  left  for  the  court  to  do  but  to  set  aside  the 
verdict  and  award  a  new  trial.  But  the  case  is  entirely  differ- 
ent when,  by  some  rule  of  law,  only  one  issue  could  have  been 
made.  The  oath  of  the  jury  shows  that  there  was  a  contest, 
an  issue,  and  the  law  declares  what  that  issue  was.  In  other 
cases  of  non-joinder  where  the  jury  is  sworn  to  try  the  "issues 
joined,"  it  is  manifest  that  the  defendant  did  contest  his  lia- 
bility, but  upon  what  ground  is  not  apparent,  and  as  it  may 
have  been  upon  an  immaterial  ground,  the  court  is  compelled 
to  set  aside  the  verdict  and  award  a  new  trial.  No  such 
necessity  exists,  however,  when  there  could  have  been  but  one 
issue. 

The  disposition  of  the  courts  in  modern  cases  is  to  disregard 
mere  technical  objections  which  have  occasioned  no  injury,  and, 
where  they  can  see  from  the  record  that  no  injury  has  resulted 
to  a  party  from  the  omission  to  join  issue  on  a  pleading,  they 
will  disregard  the  defect  and  proceed  to  judgment  on  the  merits 
of  the  case.  Under  such  circumstances,  they  hold  the  party 
to  be  estopped  from  setting  up  the  technical  objection  of  the 
want  of  issue  for  the  first  time  in  the  appellate  court,  and 
this  seems  consonant  with  right  and  justice.89  If,  however, 
the  objection  of  the  want  of  an  issue  is  seasonably  made  in 
the  trial  court,  the  litigants  should  not  be  compelled  to  go  to 
trial  without  an  issue,  and  if  the  trial  court  forces  a  trial  with- 
out an  issue,  the  verdict  and  judgment  resulting  from  such 
trial  will  be  set  aside  on  a  writ  of  error.90 

A  misjoinder  of  causes  of  action,  as  for  example  tort  and 
contract,  is,  as  we  have  seen,  good  ground  of  demurrer,  but 
if  no  demurrer  be  interposed  the  defect  is  cured  by  the  statute.91 

In  an  action  sounding  in  damages,  the  damages  should  be 
laid  in  the  declaration,  but  if  not  so  laid  but  are  claimed 
in  the  writ,  the  court,  after  verdict,  may  look  to  the  writ 

89.  Southside   R.   Co.  v.   Daniel,  20  Gratt.   344;    Bartlett  v.   McKin- 
ney,  28  Gratt.  750;   Briggs  v.  Cook,  99  Va.  273,  38  S.   E.  148;   Deat- 
rick  v.  Ins.  Co.,  107  Va.  602,  59  S.  E.  489. 

90.  Colby  v.   Reams,  109  Va.  308,  63  S.  E.  1009. 

91.  Norfolk  &  W.  R.  Co.  v.  Wysor,  82  Va.  250. 


§  207  EFFECT  OF  FAILURE  TO  DEMUR  359 

(which  is  part  of  the  record  only  for  the  purpose  of  amend- 
ment) in  support  of  the  verdict  awarding  damages,  and  will 
not  set  the  verdict  aside  for  the  defect  in  the  declaration.92 
If  no  damages  were  claimed  in  either  the  writ  or  the  declara- 
tion, the  verdict  would  probably  be  set  aside.93  If  no  damages 
are  claimed  in  a  declaration  in  trespass  on  the  case,  although 
they  are  claimed  in  the  writ,  the  omission  is  a  matter  of  sub- 
stance and  cannot  be  disregarded  on  a  demurrer  to  the  declara- 
tion, and  such  defect  is  neither  waived  nor  cured  by  the  verdict 
when  a  demurrer  has  been  interposed.94  But  it  has  been  held 
that  if  damages  are  claimed,  and  the  verdict  exceeds  the  amount 
claimed,  the  excess  must  amount  to  a  sufficient  sum  to  be 
within  the  jurisdiction  of  the  appellate  court,  or  else  it  cannot 
be  reviewed.95 

If  a  declaration  or  other  pleading  fails  to  state  any  case 
whatever,  or  if  the  court  has  no  jurisdiction  of  the  subject 
matter,  these  defects  are  not  cured  by  pleading  over,  nor  by 
the  statute  of  jeofails.96 

In  immediate  connection  with  the  statute  of  jeofails  another 
statute  should  be  read  which  declares,  among  other  things: 
"on  a  demurrer  (unless  it  be  to  a  plea  in  abatement)  the  court 
shall  not  regard  any  defect  or  imperfection  in  the  declaration 
or  pleadings,  whether  it  has  been  heretofore  deemed  misplead- 
ing or  insufficient  pleading,  or  not,  unless  there  be  omitted  some- 
thing so  essential  to  the  action  or  defence  that  judgment, 
according  to  law  and  the  very  right  of  the  case,  cannot  be 
given."97 

There  are  still  other  statutes  which  have  an  important 
bearing  on  this  subject,  making  it  unnecessary  to  allege  any 
matter  that  is  not  traversable,  abolishing  the  general  averments 
of  "other  wrongs"  committed  by  a  defendant  in  actions  of 

92.  Digges   v.   Norris,   3    Hen.    &   M.   268;    McGlamery  v.   Jackson, 
—  W.  Va.  — ,  68  S.  E.  105. 

93.  Georgia   Home   Ins.  Co.  v.   Goode,  95  Va.  751,  30  S.   E.   366. 

94.  McGlamery  v.  Jackson,  —  W.  Va.  —    68  S.   E.  105. 

95.  Giboney  z<.  Cooper,   57  W.  Va.  74,  49  S.   E.  939. 

96.  Long  r.  Campbell,  37  W.  Va.  665,  17  S.  E.  197;  Mason  v.  Bank, 
12  Leigh  84;  Boyles  v.  Overby,  11  Gratt.  202. 

97.  Code   (1904),  §  3272. 


360  DEMURRER  §    208 

trespass,  and  declaring  that  "no  action  shall  abate  for  want 
of  form,  where  the  declaration  sets  forth  sufficient  matter  of 
substance  for  the  court  to  proceed  upon  the  merits  of  the 
cause."98 

§   208.    Judgment  on  demurrer. 

As  a  defendant  in  Virginia  and  other  States  is  allowed  to  both 
demur  and  plead  to  the  plaintiff's  declaration,  he  does  not  hazard 
anything  by  doing  both.  At  subsequent  stages  of  the  pleadings 
he  must  elect  which  he  will  do,  as  he  is  not,  in  Virginia,  allowed 
to  do  both.  If,  at  the  same  time,  a  defendant  should  both 
demur  and  plead  to  a  declaration  the  issue  of  law  raised  by 
the  demurrer  should  be  decided  first,  but  an  irregularity  in  this 
respect  is  not  ground  for  reversal."  If  a  statute  requires  the 
grounds  of  demurrer  to  be  stated  in  writing,  no  others  be- 
sides those  stated  will  be  considered  by  either  the  trial  court 
or  the  appellate  court.1  If  the  record  shows  that  a  demurrer 
was  filed,  but  fails  to  disclose  any  ruling  thereon,  the  weight 
of  authority  is  to  the  effect  that  it  will  be  deemed  to  have 
been  waived  and  not  overruled,  but  the  Virginia  cases  hold 
that  it  will  be  deemed  to  have  been  overruled.2 

If  a  demurrer  to  a  plea  in  abatement  be  overruled  the  judg- 
ment is  that  the  action  do  abate,  but  if  it  be  sustained  the 
judgment  is  responded!  ouster  (that  the  defendant  plead  over, 
or  anew),  for  such  is  the  prayer  of  the  demurrer.  If,  however, 
an  issue  of  fact  be  joined,  whether  it  be  upon  a  plea  in  abate- 
ment or  a  plea  in  bar,  and  that  be  the  sole  issue  in  the  case 
and  be  found  for  the  plaintiff,  final  and  peremptory  judgment 
was  formerly  (and  even  now  in  some  States)  entered  against 
the  defendant.  The  reason  assigned  for  the  difference  is  that 
every  man  is  presumed  to  know  whether  his  plea  be  true  or 
false,  and  the  judgment  ought  to  be  final  against  him  if  he 

98.  Code    (1904),   §§    3245,   3246,    3247. 

99.  Jones  v.  Stevenson,  5   Munf.  1. 

1.  Strother  v.  Strother,  106  Va.  420,  56  S.  E.  170. 

2.  6  Encl.  PI.   &  Pr.  379,  and  cases  cited;   Miller  v.   Miller,  92  Va. 
196,  23  S.  E.  232;  Miller  v.  Black  Rock  Co.,  99  Va.  747,  40  S.  E.  27; 
Bledsoe  v.    Robinett,   105   Va.   723,   54   S.    E.   861;    East  v.   Hyde,   112 
Va.  92,  70  S.   E.  508. 


§    208  JUDGMENT    ON    DEMURRER  361 

pleads  a  fact  which  he  knows  to  be  false  and  which  is  found' 
to  be  false.  But  every  man  is  not  presumed  to  know  the 
matter  of  law,  which  is  left  to  the  judgment  of  the  court  on 
demurrer.3  This  result  would  probably  not  follow  under  the 
present  Virginia  Statute  declaring  that  the  defendant  "may 
file  pleas  in  bar  at  the  same  time  with  pleas  in  abatement,  or 
within  a  reasonable  time  thereafter."4  The  corresponding 
statute  in  West  Virginia  is:  "The  defendant  may  plead  in 
abatement  and  in  bar  at  the  same  time,  but  the  issue  on  the 
plea  in  abatement  shall  be  first  tried;  and  if  such  issue  be 
found  against  the  defendant,  he  may,  nevertheless,  make  any 
other  defence  he  may  have  to  the  action."5 

If  there  be  a  demurrer  to  a  declaration  as  a  whole,  and  it 
contains  some  good  counts  and  some  bad,  the  demurrer  should 
be  overruled  and  the  defendant  allowed  to  plead  to  the  merits, 
for  the  demurrer,  in  effect,  says  that  no  cause  of  action  is 
stated  anywhere  in  the  declaration — either  as  a  whole,  or  in' 
any  count  thereof.6 

The  proper  mode  of  demurring  in  such  case  has  already 
been  pointed  out.7  If  the  demurrer  be  to  the  declaration  and 
to  each  count  thereof,  and  some  of  the  counts  be  bad  and 
others  good,  the  demurrer  should  be  sustained  as  to  the  bad 
counts  and  overruled,  and  the  defendant  put  to  trial,  as  to  the 
good.  If  error  be  committed  in  overruling  a  demurrer  to  a 
bad  count  of  a  declaration  it  is  ground  for  reversal  (as  the 
court  cannot  tell  on  which  count  the  jury  rendered  their  ver- 
dict), unless  the  court  can  see  from  the  whole  record,  including 
the  evidence  certified,  that  the  defendant  could  not  have  been 
prejudiced  thereby,  as  that  the  verdict  of  the  jury  must  have 
been  based  on  the  good  count,  or  that  no  other  verdict  could 

3.  1   Rob.   Pr.    (old)    338;   1   Encl.   PI.   &   Pr.  31,  6  Encl.   PI.   &  Pr. 
354,  and  notes  and  cases  cited. 

4.  Code   (1904),  §  3264. 

5.  Code  W.  Va.   (1899),  ch.  125,  §  21;   Delaplaine  v.  Armstrong,  21 
W.  Va.  211,  219. 

6.  Henderson  v.   Stringer,   6  Gratt.   130;   Clark  v.  Railroad  Co.,  34^ 
W.  Va.   200,   12   S.   E.   505;   Va.,   etc.,   Wheel   Co.  v.   Harris,   103   Va. 
709,   49    S.    E.    991. 

7.  Ante,    §    202. 


-362  DEMURRER  §    208 

have  been  found.8  If  it  is  apparent  that  a  case  was  tried  on 
amended  declaration  to  which  there  was  no  demurrer,  and  it 
states  a  good  case,  the  appellate  court  will  not  look  to  the 
ruling  of  the  trial  court  on  the  demurrer  to  the  original  declara- 
tion.9 If  a  demurrer  to  a  declaration  be  sustained  on  the 
ground  of  a  misjoinder  of  causes  of  action,  what  judgment 
should  be  rendered?  If  there  is  no  amendment,  nor  offer  to 
amend,  the  objection  is  fatal,  and  final  judgment  should  be 
entered  for  the  defendant.10  But  may  the  plaintiff  amend 
so  as  to  present  a  consistent  case?  If  a  count  in  tort  be  united 
with  a  count  in  contract,  may  the  plaintiff  amend  by  striking 
out  one  of  the  counts,  thus  leaving  a  perfect  declaration  in  tort 
or  contract?  It  has  been  held  in  New  Jersey  that  he  cannot. 
There  replevin  and  trover  were  united.  The  court  said:  "An 
attempt  was  made  to  cure  this  difficulty  at  the  trial  by 
abandoning  the  count  in  replevin.  It  was  too  late  after  a 
demurrer  for  misjoinder."11  The  authority  cited  for  the  state- 
ment is  Chitty  on  Pleading,  and  Drummond  v.  Douglas,  4 
Term  360. 

But  it  is  doubtful  if  the  authority  supports  the  court.  What 
Chitty  says  is  this :  "The  plaintiff  cannot,  if  the  declaration 
be  demurred  to,  aid  the  mistake  by  entering  a  nolle  prosequi 
so  as  to  prevent  the  operation  of  the  demurrer,  though  the 
court  will  in  general  give  the  plaintiff  leave  to  amend  by  strik- 
ing out  some  of  the  counts  on  payment  of  costs."12 

In  West  Virginia  it  is  held  that  the  objection  is  fatal  to  the 
declaration,  if  there  is  no  amendment,13  but  it  is  also  held 
that  the  defect  may  be  cured  by  the  plaintiff  electing  to  pro- 
•ceed  on  a  particular  cause  or  count.14 

8.  6   Encl.   PI.   &   Pr.   368;   Rich   R.   Co.  v.   Scott,   88   Va.   958,   14  S. 
E.  763;  Newport  News,  etc.,  Co.  v.  Nicolopoolos,  109  Va.  165,  63  S. 
E.  443;  Va.   Cedar  Works  v.  Dalea,  109  Va.  333,  64  S.   E.  41;   Hood 

•V.   Bloch,   29   W.   Va.   245,   11    S.    E.   910. 

9.  Wash.  So.  Ry.  v.  Cheshire,  109  Va.  741,  65  S.   E.  27. 

10.  Gary  v.  Abingdon   Pub.  Co.,  94  Va.  775,  27  S.   E.  595,  and  au- 
thorities   cited. 

11.  King  v.  Morris   (N.  J.   Sup.   1906),  62  Atl.   1006. 

12.  1   Chitty   PI.    (188). 

13.  Malsby  v.   Lanark  Co.,   55   W.  Va.  484,   486,  47   S.   E.   358. 

14.  Knotts  v.   McGregor,   47   W.   Va.   566,   574,   35   S.    E.   899. 


§    208  JUDGMENT  ON   DEMURRER  363 

In  Virginia,  if  tort  and  contract  be  united  in  the  same 
declaration,  and  the  defendant  demurs  thereto,  the  trial  court 
should  give  the  plaintiff  leave  to  amend  by  striking  out  one 
or  more  counts  and  thus  making  a  consistent  case,15  but,  if 
upon  liberty  to  amend,  the  plaintiff  does  amend,  but  still  retains 
the  inconsistency  in  the  counts  of  his  declaration,  and  does  not 
ask  for  liberty  to  strike  out,  so  as  to  render  the  declaration 
consistent  as  a  whole,  final  judgment  should  be  entered  for 
the  defendant  on  the  demurrer,  but  this  would  not  prevent  a 
new  action  in  proper  form.16  It  has  been  further  held  in 
Virginia  that  if  a  demurrer  to  a  declaration  for  misjoinder 
of  tort  and  contract  has  been  improperly  overruled,  the  Court 
of  Appeals,  on  overruling  the  judgment  of  the  trial  court,  will 
remand  the  cause  with  liberty  to  the  plaintiff  to  amend  his 
declaration,  where  it  appears  that  there  was  no  intention  to 
create  a  misjoinder,  and  that  in  an  action  of  assumpsit  a 
special  count  intended  to  be  in  contract  was  so  inartificially 
framed  as  to  be  a  count  in  tort.17  If  there  has  been  no 
demurrer,  however,  an  objection  for  a  misjoinder  of  tort  and 
contract  comes  too  late  after  verdict.18 

Independently  of  statute,  it  is  said  that:  "On  timely  appli- 
cation, the  court  will  in  general  give  the  plaintiff  leave  to 
amend  by  striking  out  some  of  the  counts,  on  payment  of 
costs."19  The  courts  are  extremely  liberal  in  the  matter  of 
amendments  in  the  interest  of  substantial  justice,  and  no  good 
reason  is  preceived  why  such  amendment  should  not  be  made 
where  it  would  not  take  the  defendant  by  surprise.  If  it  occa- 
sions such  surprise  a  continuance  should  be  granted,  and, 
in  either  event,  such  order  made  as  to  costs  as  would  be  just 
in  the  particular  case.  If  there  be  a  demurrer  to  some  counts 
of  a  declaration  while  issues  of  fact  are  pending  on  other 
counts,  final  judgment  cannot  be  entered  upon  sustaining  the 
demurrer  while  such  issues  of  fact  are  pending.20  The  same 

15.  Creel   v.   Brown,    1    Rob.   265. 

16.  Gary  v.   Abingdon    Pub.   Co.,   94   Va.   775,   27   S.    E.   595. 

17.  Penn.  R.  Co.  v.  Smith,  106  Va.  645,  56  S.   E.  567 

18.  Code,  §  3449;   Norfolk  &  W.   R.  Co.  v.   Wysor,  82  Va.  250. 

19.  Martin  on  Civil  Procedure,  §  229,  citing  1  Chitty  PI.  206. 

20.  Morgantown   Bank  v.   Foster,   35  W.   Va.   357,   13   S.    E.   996. 


364  DEMURRER  §    208 

rule  applies  where  issues  of  law  and  fact  are  pending  on 
several  pleas.  But  if  the  question  of  law  raised  by  demurrer 
goes  to  the  whole  merits  of  the  case,  final  judgment  may  be 
entered  thereon  without  trying  the  other  issues.21 

If  a  demurrer  to  a  declaration  or  a  count  is  sustained,  the 
plaintiff  is  generally  given  liberty  to  amend,  as  of  course,  if 
the  defect  is  curable  by  amendment.  If  he  amends,  he  thereby 
waives  any  error  in  the  ruling  on  the  demurrer,  and  it  is 
immaterial  that  the  motion  to  amend  recites  that  it  is  made 
without  waiving  such  objection.22  If  the  plaintiff  declines 
to  amend,  final  judgment  is  entered  against  him,  and  if  this 
be  affirmed  on  writ  of  error,  no  leave  to  amend,  as  a  rule,  is 
granted  there.23 

If  the  trial  court  overrules  a  demurrer  to  a  declaration  and, 
on  writ  of  error,  it  appears  that  it  should  have  sustained  the 
demurrer,  the  appellate  court,  on  reversing  the  judgment  on 
demurrer,  will  generally  remand  the  case  to  the  trial  court  with 
direction  to  the  trial  court  to  permit  the  plaintiff  to  withdraw 
his  joinder  in  the  demurrer  and  to  amend  if  so  advised.24 
Where,  however,  a  demurrer  to  a  declaration  has  been  over- 
ruled, and  the  plaintiff  of  his  own  motion  has  filed  an  amended 
declaration  to  which  a  demurrer  was  also  overruled  by  the 
trial  court,  it  will  be  presumed  that  the  plaintiff  has  stated  his 
case  as  strongly  as  the  facts  would  warrant,  and  the  appellate 
court,  upon  sustaining  the  defendant's  demurrer  to  both  declara- 
tions, will  enter  up  final  judgment  for  the  defendant.25 

It  is  often  important  to  determine  whether  the  judgment 
on  demurrer  is  final  so  as  to  preclude  another  action  for  the 
same  cause,  or  the  same  defence  to  another  action.  If  the 
ruling  on  the  demurrer  to  a  declaration  involves  the  merits  of 
the  cause  so  as  to  preclude  a  recovery  on  the  facts  stated,  the 

21.  Huff  v.  Broyles,  26  Gratt.  283;  6  Encl.  PI.  &  Pr.  355. 

22.  Connell  v.  Ches.   &  O.  R.  Co.,  93  Va.  44,  24  S.   E.  467;   Birck- 
head  v.  Ches.   &  O.   R.  Co.,  95  Va.  648,  29  S.   E.  678. 

23.  Hortenstein  v.  Va.-Car.  R.  Co.,  102  Va.  914,  47  S.  E.  996. 

24.  Hansbrough    v.    Stinnett,    25    Gratt.   495;    N.    &   W.    Ry.    Co.   v. 
Stegall,  105  Va.  538,  54  S.  E.  19.     It  will  be  observed  that  these  are 
cases   of  demurrers   to  a   declaration   and  not  to   a  plea. 

25.  Ches.   &  O.  R.  Co.  v.  Wills,  111  Va.  32,  68   S.   E.  395. 


§    208  JUDGMENT  ON   DEMURRER  365 

judgment  is  final  and  bars  recovery  not  only  in  that  action, 
but  in  any  other  based  on  the  same  facts.  A  judgment  on 
demurrer  involving  the  merits  is  as  conclusive  as  one  rendered 
on  the  proof.26  Facts  may  be  admitted  as  well  by  the  plead- 
ings as  by  evidence.  But  if  the  plaintiff  has  simply  miscon- 
ceived the  form  of  action,  as  if  he  has  sued  in  covenant  when 
he  should  have  sued  in  assumpsit,  or  has  omitted  a  material 
statement  in  his  first  declaration  which  he  has  supplied  in 
the  second,  or  has  misjoined  causes  of  action  in  the  first 
declaration  which  he  has  corrected  in  the  second,  in  all  such 
cases  the  judgment  on  demurrer  is  not  final,  and  the  plaintiff 
is  allowed  to  amend  or  to  bring  a  new  action  as  the  case  may 
be.  When  a  demurrer  to  a  declaration  is  sustained,  before  a 
judgment  to  that  effect  is  finally  entered,  two  courses  are  o*pen 
to  the  plaintiff.  He  may  either  (1)  ask  liberty  to  amend,  or 
(2)  may  stand  on  the  ruling  on  demurrer.27  If  he  amends, 
he  thereby  waives  his  objection  to  the  ruling  on  demurrer.  If 
he  stands  on  the  case  stated  in  his  declaration  and  the  judgment 
of  the  trial  court  sustaining  the  demurrer  thereto  be  affirmed 
by  the  appellate  court,  the  latter  court  makes  no  order  except 
one  of  affirmance,  and  whether  he  can  bring  another  action  or 
not  is  dependent  upon  the  principles  above  stated.28  If  the 
'judgment  of  the  trial  court  is  reversed  the  case  should  be  re- 
manded for  trial  of  the  issues  made  on  the  pleas,  if  any,  but 
if  none  with  liberty  to  the  defendant  to  plead.  As  the  defendant 
has  the  right  to  both  plead  and  demur  to  the  declaration,  it  is 
presumed  that  this  liberty  would  be  accorded  him  even  after 
the  decision  on  the  demurrer  if  he  had  not  previously  tendered 
his  pleas.  It  is  not  unusual  in  practice  for  a  defendant  to 
await  a  decision  on  his  demurrer  before  tendering  his  pleas. 
When  a  demurrer  to  a  plea  is  sustained,  the  defendant  is 
usually  permitted  to  withdraw  his  plea  and  file  another  plea 
in  its  stead.  If  he  does  this  he  waives  his  objection  to  the 
ruling  of  the  court  on  the  demurrer.  If  the  demurrer  is 

26.  Norfolk   &  W.    R.   Co.  v.   Scruggs,   105   Va.    166,   52   S.    E.   834; 
North   Pac.   R.    Co.   v.   Slaght,  205   U.   S.   130,  and   cases   cited;    Ship- 
man    PI.,   §   179,   p.   270. 

27.  1  Va.  Law  Reg.  836,  note  by  Judge  Burks. 

28.  Hortenstein  v.  Va.-Car.  R.  Co.,  102  Va.  914,  47  S.  E.  996. 


366  DEMURRER  §    208 

overruled,  the  plaintiff,  likewise,  is  permitted  to  withdraw  his 
demurrer  and  reply  to  the  plea.29 

If  there  is  but  one  plea  in  a  cause  and  that  is  demurred  to, 
and  the  demurrer  is  sustained,  final  judgment  should  be  ren- 
dered by  the  trial  court  on  the  demurrer,  unless  leave  is  given 
to  amend.30 

Suppose,  however,  the  plaintiff  demurs  to  a  plea,  and  the 
demurrer  is  sustained,  and  the  defendant  stands  upon  his  plea 
and  does  not  ask  to  put  in  a  new  plea,  and  judgment  is  entered 
for  the  plaintiff  for  the  lack  of  a  plea,  and  in  this  condition 
the  case  is  taken  to  an  appellate  court,  which  decides  that  the 
plea  is  good,  what  is  the  result?  What  judgment  should  the 
appellate  court  enter  upon  the  pleadings?  It  has  been  held 
thaf  final  judgment  should  be  entered  up  for  the  defendant; 
that  the  appellate  court  cannot  remand  with  liberty  to  withdraw 
the  demurrer  and  reply;31  that  the  plaintiff  had  the  right  to 
reply  only  one  matter  of  law  or  fact,  and,  having  made  his 
election,  must  abide  by  it,  and  that  the  appellate  court  enters 
such  judgment  as  the  trial  court  ought  to  have  entered,  on  the 
pleadings  as  they  stood;  no  liberty  of  amendment  of  the 
pleadings  being  extended  to  the  appellate  court.  In  the  case 
last  referred  to  in  the  margin,  Judge  Tucker,  in  concluding 
his  opinion,  says :  "I  have  struggled  hard  to  see  if  we  could  not 
send  the  cause  back,  with  leave  to  the  plaintiffs  to  with- 
draw the  demurrer,  and  take  issue.  But  I  can  find  no  warrant 
for  such  a  proceeding.  Upon  reversing  a  judgment  at  law, 
we  must  enter  such  judgment  as  the  court  below  ought  to 
have  entered,  and  we  can  entertain  no  motion  here  for 
amendments." 

This  case  was  decided  by  a  divided  court  composed  of  three 
very  able  judges.  The  majority  opinion  was  delivered  by 
Judge  Tucker,  one  of  the  best  pleaders  and  ablest  lawyers  that 
ever  adorned  the  Virginia  bench,  and  was  concurred  in  by 
Judge  Cabell,  who  was  likewise  a  judge  of  great  ability.  In 
strictness  the  conclusion  reached  may  be  sound,  and  we 

29.  Stanton  v.   Kinsey,   151    111.   301,   37   N.   E.   871. 

30.  Chesa.  &  O.  R.  Co.  v.  Risen,  99  Va.  18,  37  S.  E.  320. 

31.  Wilson  v.  Mt.  Pleasant  Bank,  6  Leigh  570,  575. 


§    208  JUDGMENT  ON  DEMURRER  367 

may  well  hesitate  to  depart  from  it,  and  yet  it  is  to  a  degree 
technical.  The  statute,  then  as  now,  required  the  appellate 
court,  upon  reversing  a  judgment  at  law,  to  enter  such  judg- 
ment as  the  trial  court  ought  to  have  entered.  Now  upon 
sustaining  a  demurrer  to  a  plea  the  trial  court  would  enter 
judgment  for  the  plaintiff,  but  if  the  defendant  asked  it  would 
permit  him  to  withdraw  his  plea  and  substitute  another  in  its 
stead;  so  if  the  trial  court  overruled  the  demurrer,  it  would 
permit  the  plaintiff  to  withdraw  his  demurrer  and  object  to 
the  reception  of  the  plea,  or  reply  to  it.  Undoubtedly  these 
powers  are  constantly  exercised  by  the  trial  courts,  and  under 
a  liberal  construction  of  the  statute,  it  may  be  held  that  it 
was  the  legislative  intent  to  invest  the  appellate  court  (upon 
reversing  a  judgment)  with  the  same  powers  over  the  pleadings 
and  procedure  as  the  trial  court  had.  Such  seems  to  have  been 
the  view  of  Judge  Brockenbrough  in  the  case  above  cited,  and 
such  was  probably  the  view  of  the  court  in  Penn.  R.  Co.  r. 
Smith,  supra,  note  17.  The  two  cases  appear  to  be  in  conflict, 
though  the  latter  does  not  refer  to  the  former,  and  seems  to  be 
based(  on  its  peculiar  facts  rather  than  upon  a  construction  of 
the  statute.  A  liberal  construction  of  the  statute  would  seem 
to  be  in  aid  of  justice  and  to  be  preferable  to  a  construction 
that  would  defeat  substantial  rights  by  a  mere  technical  con- 
struction of  the  language  of  the  statute.  A  still  more  recent 
case,  where  the  Court  of  Appeals  reversed  and  remanded  a 
case,  but  declined  to  authorize  an  amendment  of  the  pleadings 
in  the  trial  court,32  leaves  it  doubtful  what  construction  it  will 
put  upon  the  statute. 

32.  Taylor  v.  Sutherlin-Meade  Co.,  107  Va.  787,  60  S.  E.  132.  This 
was  an  attachment  where  the  court  refused  to  allow  the  affidavit 
to  be  amended,  and  may  probably  be  rested  on  different  grounds 
from  those  here  under  consideration.  The  subject  here  considered 
is  very  fully  and  ably  discussed  by  Professor  C.  B.  Garnett  in  14 
Va.  Law  Reg.  836,  maintaining  the  view  that  the  appellate  court 
has  power  to  allow  amendments  to  be  made,  and  has  frequently  ex- 
ercised it. 


CHAPTER  XXVI. 
BANKRUPTCY. 

§  209.  Introductory. 

§  210.  Discharge  in  Bankruptcy. 

§  211.  Plea  of  Discharge. 

§  209.    Introductory. 

It  has  been  hereinbefore  pointed  out  that  the  only  defences 
which  may  not  be  made  under  the  broad  general  issues  of  non 
assumpsit  and  nil  debet  are  bankruptcy,  tender  and  the  Act  of 
Limitations.  But  little  need  be  said  on  the  subject  of  bank- 
ruptcy, so  far  as  it  relates  to  the  subject  of  pleading. 

§  210.    Discharge  in  bankruptcy. 

It  is  the  discharge  in  bankruptcy,  and  not  the  adjudication, 
which  is  effective  to  bar  the  action.  The  fact  of  adjudication 
is  a  matter  of  suspension  and  not  of  bar  to  the  action.  If  a 
party  has  been  sued,  but  has  been  -adjudged  a  bankrupt  before 
judgment,  and  wishes  to  interpose  his  bankruptcy  as  a  defence 
to  the  action,  he  should  plead  his  adjudication  in  suspension  of 
the  action  until  such  reasonable  time  as  will  enable  him  to 
obtain  his  discharge,  which  may  then  be  pleaded  in  bar.  The 
discharge,  when  applicable,  operates  as  a  release  of  the  bank- 
rupt personally,  and  of  all  of  his  after  acquired  property  from 
all  liability  for  debts  which  are  provable  against  him.  Debts 
not  provable,  and  hence  not  discharged  by  the  discharge  in  bank- 
ruptcy, are  best  set  forth  in  §  17  of  the  Bankruptcy  Act,  as 
amended,  which  is  as  follows : 

"A  discharge  in  bankruptcy  shall  release  a  bankrupt  from 
all  of  his  provable  debts,  except  such  as  (1)  are  due  as  a 
tax  levied  by  the  United  States,  the  State,  county,  district,  or 
municipality  in  which  he  resides;  (2)  or  liabilities  for  obtaining 
property  by  false  pretenses  or  false  representations,  or  wilful 
and  malicious  injuries  to  the  person  or  property  of  another;  or 
for  alimony  due  or  to  become  due,  or  for  maintenance  of  unfe 


§    210  DISCHARGE  IN   BANKRUPTCY  369 

or  child,  or  for  seduction  of  an  unmarried  female,  or  for  criminal 
-conversation;  (3)  have  not  been  duly  scheduled  in  time  for 
proof  and  allowance,  with  the  name  of  the  creditor,  if  known 
to  the  bankrupt,  unless  such  creditor  had  notice  or  actual 
knowledge  of  the  proceedings  in  bankruptcy;  or  (4)  were 
created  by  his  fraud,  embezzlement,  misappropriation,  or  de- 
falcation while  acting  as  an  officer  or  in  any  fiduciary  capacity." 
Discharge  in  bankruptcy,  however,  is  generally  a  personal  de- 
fence, which  the  debtor  may  waive  if  he  chooses,  provided  it 
does  not  affect  substantial  rights  of  innocent  third  persons,  but 
if  it  is  necessary  for  -a  purchaser  of  the  bankrupt's  land  to 
defend  his  own  title  by  defending  that  of  his  vendor,  and  this 
can  only  be  ddne  by  setting  up  the  discharge  in  bankruptcy  of 
his  vendor  and  his  release  from  debts  evidenced  by  judgments 
against  his  vendor,  he  will  be  permitted  to  plead  such  discharge 
in  bankruptcy  of  his  vendor.1  Unless,  however,  the  rights  of 
third  persons  will  be  affected  in  some  such  manner  as  above  in- 
dicated, a  personal  judgment  may  be  taken  against  the  bankrupt 
for  his  antecedent  debt,  if  he  fails  to  plead  his  discharge. 
So.  likewise,  the  antecedent  debt  furnishes  a  good  consideration 
for  a  new  promise  to  pay  it,  and  if  the  new  promise  is  clearly 
and  distinctly  proved,  a  personal  judgment  may  be  rendered  for 
the  debt.  The  new  promise  may  be  made  at  any  time  after 
adjudication.  It  need  not  have  been  made  after  discharge.  It 
may  be  conditional,  provided  the  condition  has  been  fulfilled.2 

\Yhether  a  judgment  rendered  against  a  bankrupt  on  a  prov- 
able debt,  after  the  commencement  of  proceedings  in  bank- 
ruptcy, but  before  his  discharge  and  when  he  has  interposed 
no  defence,  continues  to  bind  him  and  his  after  acquired  prop- 
erty, or  he  is  discharged  by  his  discharge  in  bankruptcy,  is  the 
subject  of  much  conflict  of  authority,  but  it  is  believed  that 
upon  reason  and  the  weight  of  authority  the  judgment  is  dis- 
charged.3 

1.  Blair  v.  Carter,  78  Va.  621,  and  cases  cited. 

2.  16  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  789  ff,  and  cases  cited. 

3.  Boynton  v.  Ball,  121  U.  S.  457;  Blair  r.  Carter,  78  Va.  621;  Zum- 
hro  v.  Stump,  38  W.  Va.  325,  18  S.  E.  443;  16  Am.  &  Eng.  Encl.  Law 
(2nd   Ed.)   772.  and  notes;   Note  by  Freeman.  53  Am.   Dec.  296. 

—24 


370  BANKRUPTCY  §211 

§  211.    Plea  of  discharge. 

The  proper  form  of  a  plea  of  discharge  in  bankruptcy  is  as 
follows : 

The  defendant  says  that  the  plaintiff  ought  not  to  have  or  main- 
tain his  action  aforesaid  against  him,  because  he  says  that  after  the 
making  of  the  supposed  writing  obligatory  (or  other  evidence  of  the 
debt,  as  the  case  may  be)  in  the  declaration  mentioned,  and  before 

the  commencement  of  this  suit,  to-wit,  on  the  day  of  — 

he   was   granted   a   discharge   by   the    District   Court   of   the   United 

States  of  America  for  the  District  of  from  all 

provable  debts  then  existing  against  him,  which  discharge  is  in  the 
words  and  figures  following,  to-wit: 

(here  insert  the  discharge  in  its  exact  language) 
And  the  defendant  further  says  that  the   supposed  writing  obliga- 
tory  (or   other   evidence   of   the   debt,   as   the   case   may   be)    in   the 
declaration  mentioned  was  given   for  a  debt  or  claim  which  by  the 
said  Act  of  Congress  was  made  provable  against  the  estate  of  the 

defendant    and    which    existed    on    the   day    of ;    and    the 

defendant  further  says  that  the  supposed  writing  obligatory  was  not 
given  for,  or  as  evidence  of,  any  debt  or  claim  excepted  by  said 
Act  from  the  operation  of  a  discharge  in  bankruptcy,  and  this  the 
said  defendant  is  ready  to  verify,  wherefore  he  prays  judgment  if  the 
plaintiff  ought  to  have  .or  maintain  his  action  aforesaid  against  him. 

The  plaintiff  may  take  issue  on  this  plea,  thereby  raising  the 
question  as  to  whether  or  not  any  such  discharge  was  in  fact 
granted  as  set  forth  in  the  plea,  or  he  may  deny  that  the 
debt  for  which  the  action  was  brought  is  such  a  debt  as  would 
be  discharged  by  the  defendant's  bankruptcy,  or  he  may  rely 
upon  some  fraud  in  procuring  the  discharge.  In  either  of  the 
two  latter  events,  a  special  replication  will  be  necessary  setting 
forth  the  facts. 


CHAPTER  XXVII. 
TENDER. 

§  212.  Definition. 

§  213.  Sufficiency   of  tender   of  money. 

§  214.  Form  of  plea. 

§  215.  Effect  of  valid  tender. 

§   212.    Definition. 

"Tender  is  an  offer  or  attempt  to  perform,  and  may  be 
either:  (a)  An  offer  to  do  something  promised,  in  which  case 
the  offer,  and  its  refusal  by  the  promisee,  discharge  the  promisor 
from  the  contract,  (b)  An  offer  to  pay  something  promised, 
in  which  case  the  offer,  and  its  refusal  by  the  promisee,  do  not 
discharge  the  debt,  but  prevent  the  promisee  from  recovering  more 
than  the  amount  tendered,  and  in  an  action  by  the  promisee  en- 
title the  promisor  to  recover  the  costs  of  his  defence."1 

§   213.    Sufficiency  of  tender  of  money. 

In  order  to  constitute  a  valid  tender  at  common  law  it  is  essen- 
tial that  the  tender  should  be  made  at  the  time  and  place  stipulated 
in  the  contract,  in  money,  of  the  correct  amount,  unconditional, 
and  that  the  tender  should  be  kept  good  and  the  amount  brought 
into  court  with  the  plea.  A  tender  either  before  or  after  the 
time  stipulated  in  the  contract,  or  at  a  different  place,  is  bad. 
If  no  time  is  fixed  it  is  to  be  made  within  a  reasonable  time, 
and  if  no  place  is  designated  it  is  the  duty  of  the  debtor  to  seek 
the  creditor,  if  within  the  State,  but  he  is  not  obliged  to  seek 
him  outside  the  State.  Usually  the  tender  must  be  of  current 
money2 — not  checks,  certificates  of  deposit  or  other  evidences 

1.  Clark   on   Contracts    (2nd   Ed.)    440. 

2.  Currency  which  may,  or  may  not  be  tendered  for  private  debts: 
(1)   Gold  coin  is  a  full  legal  tender  at  its  face  value  if  not  sweated, 
etc.;    (2)     Gold  certificates  are  not  a  legal  tender  at  all;    (3)    Silver 
dollars  are  a  full  legal  tender  unless   otherwise  stipulated   expressly 
in  the   contract;    (4)     Silver  certificates  are   not  a  legal   tender;    (5) 
United  States  notes   (greenbacks)  are  a  full  legal  tender  for  all  pri^ 


372  TENDER  §  213 

of  debt — but  this  provision  may  be  waived  and  will  be  deemed 
to  have  been  waived  if  refused  on  other  grounds.  It  is  unneces- 
sary to  tender  the  exact  amount  due  if  a  sum  sufficient  is 
offered  from  which  the  creditor  can  take  what  is  due  him  with- 
out the  necessity  for  making  change.  Generally  it  is  necessary 
that  the  tender  should  be  unconditional.  The  creditor  can  not 
demand,  as  a  condition,  the  execution  of  releases,  or  convey- 
ances, or  receipts  in  full,  or  delivery  of  property  or  the  like. 
If  the  evidence  of  the  debt  is  negotiable  paper,  the  authorities 
are  conflicting  as  to  whether  the  payer  has  the  right  to  demand 
its  surrender,3  without  invalidating  his  tender,  and  in  some 
cases  it  has  been  held  that  he  may  demand  a  receipt  for  the 
sum  paid,  though  not  a  receipt  in  full.  Furthermore,  the  tender 
must  be  kept  good,  and  the  amount  brought  into  court  with 
the  plea.  If  at  any  time  after  the  tender  the  debtor  is  not  ready 
and  willing  to  pay,  he  loses  the  benefit  of  the  tender  previously 
made,  but  he  is  not  expected  to  carry  the  money  on  his  person 
all  the  time,  and  if  a  subsequent  demand  is  made  upon  him, 
after  tender  refused,  he  must  be  accorded  a  reasonable  time 
within  which  to  comply.  Tender  can  only  be  made  by  the 
debtor  or  his  agent,  to  the  creditor  or  his  agent.  The  common 
law  requirements  of  a  tender  ad  diem  (on  the  very  day  the 
money  was  due)  and  of  keeping  the  tender  good  and  bringing 
the  money  into  court  so  restricted  its  use  that  finally  a  statute 
was  passed  in  England  allowing  the  sum  clue  to  be  paid  into 
court  in  nearly  all  personal  actions.  Similar*  statutes  have  been 
adopted  in  a  number  of  the  States.4 

In   Virginia,   while   the   common   law   doctrine   of  tender  has 
not  been  specifically  repealed  or  abolished,  it  has  been  practically 

vate  debts  in  the  United  States;  (6)  Treasury  notes  of  1890  are  also 
full  legal  tender  unless  otherwise  expressly  stipulated;  (7)  National 
bank  notes  are  not  a  legal  tender  except  to  national  banks;  (8)  Sub- 
sidiary silver  coins  are  a  full  legal  tender  up  to  $10.00;  (9)  Minor 
coins,  such  as  nickels,  cents,  etc.,  are  a  full  legal  tender  up  to  25c.; 
(10)  Currency  certificates  are  not  a  legal  tender  at  all.  Benjamin 
on  Sales,  §  705. 

3.  38   Cyc.   154. 

4.  28  Am.  &  Eng.  End.  Law   (2nd  Ed.)   4  ff;  4  Min.  Inst.  735,  736; 
38  Cyc.   127  ff. 


§   214  FORM  OF  PLEA  373 

superseded  by  statute,  declaring  that  "in  any  personal  action, 
the  defendant  may  pay  into  court,  to  the  clerk,  a  sum  of 
money  on  account  of  what  is  claimed,  or  by  way  of  compensa- 
tion or  amends,  and  plead  that  he  is  not  indebted  to  the  plaintiff 
(or  that  the  plaintiff  has  not  sustained  damages)  to  a  greater 
amount  than  the  said  sum;"5  and  "The  plaintiff  may  accept  the 
said  sum  either  in  full  satisfaction,  and  then  have  judgment 
for  his  costs,  or  in  part  satisfaction,  and  reply  to  the  plea  gen- 
erally, and,  if  issue  thereon  be  found  for  the  defendant,  judg- 
ment shall  be  given  for  the  defendant,  and  he  shall  recover 
his  costs."6 

These  enactments  apply  to  all  personal  actions  whether  upon 
tort  or  contract,  and  if  a  tender,  after  maturity  of  a  money 
demand,  be  made  of  the  full  amount  (principal  and  interest  to 
date  of  tender),  and  be  arbitrarily  refused,  and  the  debtor 
keeps  his  tender  good  and  pays  the  money  into  court  and  files 
a  plea  under  §  3296,  it  is  not  likely  that  any  court  or  jury 
would  require  more. 

§   214.    Form  of  plea. 

The   following  is  the   form  of   plea  given  by   Prof.   Minor7 
and  states  the  essentials  of  a  valid  tender: 
Circuit  Court  for  A  County,  to-wit: 

Rules, 19 

D.  D. 

v. 
C.  C. 

And  the  said  defendant,  by  his  attorney,  comes  and  says 
that  the  said  plaintiff  ought  not  to  have  or  maintain  his  action 
aforesaid  thereof  against  him  to  recover  any  damages  or  interest 

by  reason  of  the  non-payment  of  the  said  sum  of dollars 

in  the  said  declaration  mentioned,  because  he  says  that  the  said 
defendant,  on  the  day  when  the  said  sum  became  due  and 

payable,  to-wit,  on  the    day  of    ,  in  the  year  of  our 

Lord  nineteen  hundred  and   .  .  .  . ,  was  ready  and  willing,  and 

5.  Code,  §  3296. 

6.  Code,  §  3297. 

7.  4  Min.   Inst.  1754. 


374  TENDER  §  215 

then  tendered  and  offered  to  pay  to  the  said  plaintiff  the  sum 

of   dollars,  to  receive  which  of  the  said  defendant  the 

said  plaintiff  then  wholly  refused,  and  the  said  defendant  avers 
that  from  thence  hitherto  he  hath  been  and  still  is  ready  to  pay 

to  the  said  plaintiff  the  said  sum  of    dollars,   and  the 

said  defendant  now  brings  the  same  into  court  here,  ready  to 
be  paid  to  the  said  plaintiff  if  he  will  accept  the  same.  And 
this  the  said  defendant  is  ready  to  verify.  Wherefore  he  prays 
judgment  if  the  said  plaintiff  ought  to  have  or  maintain  his 
action  aforesaid  thereof  against  him  as  to  any  damages  or 

interest  by  reason  of  the  non-payment  of  the  said  sum  of 

dollars. 

C.  A.  S.,  p.  d. 

The  plea  must  show  the  amount  tendered,  time,  place,  kind  of 
money,  and  continued  readiness,  and  the  defendant  must  bring 
the  money  into  court  with  his  plea. 

§   215.    Effect  of  valid  tender. 

If  the  promise  was  to  do  something  other  than  to  pay  money, 
it  relieves  the  promisor  from  the  obligation  of  his  promise. 
If  the  promise  was  to  pay  money,  it  relieves  him  from  the 
liability  for  interest  thereafter  accruing,  and  from  the  costs 
of  the  subsequent  action,  but  does  not  relieve  him  from  liability 
for  the  debt.  Whether  the  defendant  can  thereafter  escape 
liability  for  the  full  amount  tendered  has  been  the  subject  of 
conflicting  views.  On  the  one  hand,  it  is  said  that  as  tender 
is  an  admission  of  the  sum  tendered  there  can  never  be  a 
verdict  for  a  less  sum.8  On  the  other  hand,  it  has  been  held 
that  if  there  is  a  tender  of  an  amount  which  is  larger  than  the 
sum  shown  by  the  evidence  to  be  really  due,  the  court  is  not 
bound  to  give  judgment  for  the  larger  sum  tendered.9  In  the 
absence  of  mistake,  the  overwhelming  weight  of  authority  is 
that  tender  is  an  admission  that  the  amount  tendered  is  due, 
even  though  the  tender  was  insufficient  in  form,  or  made  in  a 

8.  Denver  R.  Co.  v.  Harp,  6  Colo.  420;  Wm.  Cameron  Co.  v.  Camp- 
bell (C.  C.  A.),  141  Fed.  42. 

9.  Glos  v.  Goodrich,  175  111.  20,  51  N.  E.  643. 


§215  EFFECT  OF  VAUD  TENDER  375 

case  where  a  valid  tender  could  not  be  made,10  and  this  con- 
clusion seems  to  accord  with  reason. 

It  is  generally  held  that  a  valid  tender  of  the  amount  due 
upon  a  debt  secured  by  a  mortgage  or  other  lien  on  real  or 
personal  property  operates  to  discharge  the  lien  and  leaves  the 
creditor  with  only  his  personal  claim  upon  the  debtor,  but  it  is 
said  that  this  rule  does  not  apply  to  the  lien  of  a  judgment, 
and  probably  not  to  an  attachment.  So,  also,  if  the  debt  be 
secured  by  a  surety  (that  is,  a  surety  is  bound  personally  for 
the  debt)  a  valid  tender  operates  to  release  the  surety,  though 
the  principal  debtor  still  remains  liable.11  Money  tendered  and 
refused  remains  the  property  of  the  person  making  the  tender 
and  may  be  taken  to  pay  his  debts,  but  he  must  be  ready,  able 
and  willing  at  all  times  to  substitute  other  money  and  thus 
keep  his  tender  good. 

10.  38  Cyc.  163,  164,  and  cases  cited. 

11.  38  Cyc.  163;  28  Am.  &  Eng.  Encl.  Law  (2nd  Ed.),  13,  14.     See 
also  McClain  v.  Balton,  50  W.  Va.  130,  131,  40  S.  E.  509. 


CHAPTER  XXVIII. 

LIMITATION  OF  ACTIONS. 

§  216.  Historical. 

§  217.  Nature,  effect  and  validity  of  statute. 

Limitation  of  remedy. 

Limitation  of  right. 

Adverse  Possession. 

Conventional  limitations. 
§  218.  Parties  affected. 
§  219.  When  the  statute  begins  to  run. 

(1)  Demand  paper. 

(2)  Bank  deposits. 

(3)  Coupons. 

(4)  Calls  on  stock. 

(5)  Cloud  on  title. 

(6)  Covenant  lor  general  warranty. 

(7)  Death  by  wrongful  act. 

(8)  Fraud  and  mistake. 

(9)  Malicious  abuse  of  civil  process. 

(10)  Voluntary  conveyances. 

(11)  Accounts. 

(12)  Debt  acknowledged  in  a  will. 

(13)  Judgments. 

(14)  Nuisance. 

(15)  Partners. 

(16)  Principal  and  surety. 

(17)  Co-sureties. 

(18)  Principal  and  agent. 

(19)  Attorney  and  client. 

(20)  Express  trustees,  executors,  administrators,  guard- 

ians, etc. 

(21)  Tenant  and  co-tenant. 

(22)  Landlord   and   tenant. 

(23)  Vendor  and  purchaser. 

(24)  Assignor  and  assignee. 

(25)  Persons  under  disability. 
§  220.  What  limitation   is  applicable. 

(1)  Tort  or  contract. 

(2)  Cases  on  contract. 

(3)  Debt  assumed  by  grantee  in  a  deed. 

(4)  Coupons. 

(5)  Debt  secured    by  mortgage,  deed  of  trust,  or  pledge. 


§   216  HISTORICAL  377 

(6)  Lien  for  purchase  money. 

(7)  To   recover   damages  for  suing  out  an   injunction, 

(8)  Principal  and  surety. 

(9)  Death  by  wrongful  act. 

(10)  Proceedings  in  federal  courts. 

(11)  Unmatured  debts. 

(12)  Foreign  contracts. 

(13)  Foreign  judgments. 

§  221.  What  stops  or  suspends  the   running  of  the  statute. 

(1)  Commencement  of  action. 

(2)  Amendment  of  pleadings. 

(3)  Removal  from  state. 

(4)  Infancy. 

(5)  Death. 

(6)  Inability  to   serve  process. 
In  equity. 

§  222.  How  defence  of  statute  is  made. 
At  law. 

(1)  By  demurrer. 

(2)  By  special  plea. 

(3)  Shown  under  the  general  issue. 

(4)  By  instructions. 
In  equity. 

In  code  states. 

Matters  of  avoidance. 
§  223.  Who  may  plead  the  statute. 

Fiduciaries. 

Strangers. 
§  224.  New  promise  or  acknowledgment. 

Effect  of  new  promise. 

Nature   of  promise  or  acknowledgment. 

Undelivered  writing. 

Provisions  in  wills. 

By  whom  promise   should  be  made. 

(1)  By  party. 

(2)  By  partners  after  dissolution. 

(3)  By  personal  representative. 
To   whom  promise   should   be   made. 
When  new  promise  should  be  made. 

§  225.  Waiver   and    Estoppel. 
§  226.  Burden  of  proof. 
§  227.  Appeal  and  error. 

§   216.    Historical. 

At  common  law  there  was  no  limitation  of  actions  except  the 
presumption  of  payment  arising  from  the  lapse  of  time,    and 


.378  LIMITATION  OF  ACTIONS  §    217 

•even  after  a  statute  was  passed  in  England  there  was  conflict 
among  the  judges  as  to  whether  the  statute  was  one  of  presump- 
tion, or  one  of  repose.  Lord  Mansfield  held  that  the  statute,  in 
case  of  money  demands,  was  a  mere  presumption  of  satisfaction, 
and  consequently  allowed  almost  anything  to  be  proved  that 
showed  that  the  debt  had  not  been  paid  to  defeat  the  plea  of 
the  statute.  While  Chief  Justice  Best  held  that  it  was  a 
statute  of  repose,  and  this  led  to  the  adoption  of  what  is 
known  as  Lord  Tenterden's  Act  in  1829  (9  Geo.  IV,  Chap. 
XIV)  adopting  in  effect  the  view  of  Chief  Justice  Best.  The 
latter  view  is  the  one  held  in  Virginia,  and  in  practically  all 
of  the  States.1  Being  statutes  of  repose  they  are  liberally  con- 
strued.2 

§   217.    Nature,  effect  and  validity  of  statute. 

"A  limitation  fixed  by  statute  is  arbitrary  and  peremptory, 
admitting  of  no  excuse  or  delay  beyond  the  period  fixed,  unless 
such  excuse  be  recognized  by  the  statute  itself."3  The  legisla- 
ture has  full  power  to  make  any  exception  it  chooses,  or  to 
refuse  to  make  any  at  all,  and,  whether  or  not  an  exception 
exists,  for  instance  in  favor  of  infants,  insane  .  persons  or 
others,  is  to  be  determined  from  the  statute  itself.  If  the 
statute  makes  exceptions,  they  exist;  if  not,  they  do  not  exist, 
as  there  is  no  limitation  of  actions  at  common  law.4 

Statutes  of  limitation  may  be  of  several  different  kinds.  The 
statute  may  (1)  simply  interpose  a  barrier  between  a  claimant 
and  the  remedy  for  the  enforcement  of  his  right,  and  such  is 
generally  the  statute  applicable  to  personal  actions  ex  contracts 
and  ex  delict o,  or  it  may  (2)  limit  the  right  of  recovery  as  dis- 
tinguished from  the  remedy,  or  it  may  (3)  constitute  a  muni- 
ment of  title  to  property,  real  or  personal.  In  addition  to  this 
there  may  be  conventional  limitations.  The  first  class  may  be 

1.  Templeman  v.  Pugh,  102  Va.  441,  46  S.  E.  474;  19  Am.  &  Eng. 
Encl.  Law  (2nd  Ed.)  146. 

2.  Bell  v.  Morrison,  1   Pet.  351. 

3.  Peoria  F.  &  M.  Ins.  Co.  v.  Hall,  12  Mich.  202. 

4.  Vance  v.  Vance,  108  U.  S.  514;  Terry  v.  Anderson,  95  U.  S.  634; 
Leonard  v.  Henderson,  23  Gratt.  331,  338;   Bickle  v.  Chrisman,  76  Va. 
.678;  Jones  v.  Lemon,  26  W.  Va.  629. 


§    217  NATURE,   EFFECT  AND  VALIDITY  OF  STATUTE  379 

designated  as  a  limitation  of  remedy,  the  second  as  a  limitation 
of  the  right,  and  the  third  as  title  by  adverse  possession. 

Limitation  of  remedy.  This  is  the  limitation  generally  re- 
ferred to  in  speaking  of  the  statute  of  limitations.  A  limitation 
may  be  prescribed  to  the  enforcement  of  a  right  to  which  there 
was  no  limitation  at  the  time  the  right  accrued,  or  an  existing 
limitation  may  be  reduced,  provided  always  a  reasonable  time 
is  allowed  to  elapse  before  the  expiration  of  the  time  prescribed. 
So  also  the  limitation  may  be  extended,  or,  in  some  jurisdictions, 
taken  away  altogether.5  It  has  been  held  by  the  Supreme  Court 
of  the  United  States  that  no  person  has  a  vested  right  in  the 
statute  of  limitations  as  a  defence  to  his  promise  to  pay  money, 
that  the  right  to  defeat  payment  of  a  just  debt  by  the  statute  is 
not  a  vested  right,  hence  if  the  statute  were  repealed  after  the 
bar  had  attached,  in  those  cases  (that  is  where  the  bar  did  not  con- 
fer title  in  the  adversary),  the  right  might  be  enforced.6  The 
same  doctrine  is  held  in  West  Virginia,  Texas,  Florida,  New 
York,  Pennsylvania  and  one  or  two  other  states  but  the  weight 
of  authority  is  against  it.7  In  Virginia  this  doctrine  is  distinctly 
repudiated  by  statute  enacted  for  that  very  purpose.8 

Limitation  of  right.  If  a  statute  confers  a  right  for  the  first 
time  (i.  e.,  a  right  that  did  not  exist  at  common  law)  and  at  the 
same  time  fixes  the  period  within  which  the  right  may  be  en- 
forced, then  the  limitation  is  of  the  right,  and  not  merely  of  the 
remedy.  Here  time  is  of  the  essence  of  the  right  and  a  condition 
of  its  existence  and  duration  (and  not  a  mere  limitation  of  the 
remedy)  and  it  should  be  alleged  and  proved  that  the  action  is 
"brought  within  the  period  of  existence  of  the  right.  The  right  is 
lost  if  not  asserted  within  the  statutory  period.9 

5.  Terry  r.    Anderson,    95   U.   S.   628;    Vance   v.   Vance,   108   U.    S. 
514. 

6.  Campbell  v.  Holt,  115  U.  S.  620. 

7.  McEldowney  v.  Wyatt,  44  W.  Va.  711,  30  S.  E.  239;  19  Am.  & 
Eng.  Encl.  Law  (2nd  Ed.)  171,  172. 

8.  Code,  §  2936;  Kesterson  z/.  Hill,  101  Va.  739,  45  S.  E.  288;  Burks' 
Address,  p.  25. 

9.  Lambert  v.  Ensign  Man.  Co.,  42  W.  Va.  813,  26  S.  E.  451;  The 
Harrisburg,  119  U.  S.  199;  McCartney  v.  Tyrer,  94  Va.  .203;  Manuel 
r.  X.  &.  W.  R.  Co.,  99  Va.  188,  37  S.  E.  957;    Savings  Bank  v.  Powha- 
tan  Clay  Co.,  102  Va.  274,  46  S.  E.  294;  3  Va.  Law  Reg.  63. 


Iff 


380  LIMITATION    OF    ACTIONS  §    218 

Adverse  possession.  Statutes  in  the  states  generally  fix  a 
time  beyond  which  no  action  can  be  brought  to  recover  either 
real  or  personal  property  in  the  adverse  possession  of  another. 
The  object  of  these  statutes  is  to  quiet  titles  to  property,  and  to- 
require  claimants  out  of  possession  to  assert  their  claims  within 
such  reasonable  time  as  the  statutes  prescribe.  The  effect  of  the 
statutes  is  not  merely  to  bar  the  remedy  of  the  claimant  to  the 
property,  but  to  take  away  from  him  altogether  the  right  to  the 
property,  and  vest  it  in  the  defendant  in  possession,  thereby  giv- 
ing the  latter  the  superior  title.  It  is  one  of  the  most  valuable 
muniments  of  title,  and  is  absolutely  essential  to  the  repose  of 
society.  Title  thus  obtained  is  superior  to  any  paper  title,  and 
no  repeal  of  the  statute  can  operate  to  divest  the  adverse  claim- 
ant of  the  title  thus  acquired.  The  right  and  title  thus  acquired 
is  a  vested  right  which  the  legislature  has  no  power  to  disturb.10 

Conventional  limitations.  Parties  may  agree  upon  a  less  time 
within  which  an  action  may  be  brought  than  that  prescribed  by 
law,  unless  prohibited  by  statute,  as  it  may  be,11  and  the  agree- 
ment will  be  enforced.12  An  agreement  that  a  claim  for  loss  or 
damage  to  goods  shipped  by  rail  shall  be  made  in  writing  within 
thirty  days  is  valid.  It  is  not  really  a  limitation  of  the  time  to 
sue.13  Agreements  to  extend  the  time  for  the  statute  to  run,  or 
to  waive  it  altogether,  are  treated  hereinafter  in  §  225. 

§   218.    Parties  affected. 

Generally  the  statute  operates  upon  every  person,  natural  and 
artificial,  but  there  is  one  notable  exception,  and  that  is  the 
public  government. 

State.  As  a  rule,  statutes  of  limitation  do  not  apply  to  the 
State  unless  expressly  mentioned,  and  it  is  said  that 
the  same  is  true  of  county  governments  and  municipalities  when 

10.  Campbell    v.    Holt,    115    U.  S.    620;     Leffingwell    v.    Warren,  % 
Black  (U.  S.)  599;    Sharon  v.  Tucker,  144  U.  S.  544;    19  Am.  &  Eng. 
Enc.  Law   (2nd  Ed.)   172;  Code,  §  2915,  and  cases  cited. 

11.  Smith  v.  Ins.  Co.,  112  Va.  — ,  70  S.  E.  482. 

12.  Cochran  v.  London  Corp.,  93  Va.  553,  25  S.  E.  597. 

13.  Liquid   C.   Co.  v.    N.   &   W.   R.   Co.,   107   Va.   323,   58   S.   E.   569; 
Atlantic  Coast  Line  v.  Bryan,  109  Va.  525,  65  S.  E.  30;    St.  Louis  & 
Santa  Fe  R.  Co.  v.  Wallace  (Ark.),  119  S.  W.  254. 


§  219  WHEN  THE;  STATUTE  BEGINS  TO  RUN  381 

asserting  rights  of  a  purely  public  and  governmental  nature, 
as  they  are  then  mere  arms  of  the  State,  but  this  is  not  true 
when  they  are  engaged  in  trade  or  commercial  matters,  such 
as  issuing  bonds,  collecting  debts  and  the  like.14 

In  Virginia  it  is  provided  by  §  2937  of  the  Code  that  no 
statute  of  limitations  which  shall  not  in  express  terms  apply 
to  the  commonwealth  shall  be  deemed  a  bar  to  any  proceeding 
by  or  on  behalf  of  the  same.  In  West  Virginia  it  is  provided 
by  Code,  §  1137,  that  "every  act  of  limitation,  unless  otherwise 
expressly  provided,  shall  apply  to  the  State."  It  has  been  held, 
however,  that,  notwithstanding  the  latter  statute,  the  public  ease- 
ments in  the  public  highways  of  the  State  are  not  subject  to  the 
statute  of  limitations.15 

Hospitals  for  the  insane  are  in  Virginia  State  institutions 
and  the  statute  of  limitations  does  not  run  against  debts  due 
to  them.16  If  the  State  or  one  of  its  agencies  sues  in  the 
courts  of  another  State,  however,  they  stand  on  the  footing 
of  an  individual,  and  the  ordinary  statute  of  limitation  applies.17 

§   219.    When  the  statute  begins  to  run. 

The  statute  begins  to  run  when  a  party  has  a  right  to  sue, 
that  is,  when  there  has  been  a  breach  of  duty,  or  a  violation 
of  a  contract,  giving  rise  to  a  cause  of  action.18  In  the 
following  cases  the  relations  of  the  parties  to  each  other,  or 
the  subject  matter,  is  such  as  to  require  special  mention. 

(1)  Demand  paper.  For  the  purpose  of  the  statute  of 
limitations  all  demand  paper  is,  as  to  the  persons  primarily 
liable  thereon,  due  as  of  its  date,  and  the  act  of  limitations 

14.  19  Am.  &  Eng.  Encl.  Law   (2nd  Ed.)   191;   Reusens  v.  Lawson, 
•91  Va.  226,  21  S.  E.  347;   Johnson  v.  Black,  103  Va.  477,  49  S.  E.  633; 
Bellenot  r.   Richmond,  108  Va.  314,  61  S.   E.  785. 

15.  Ralston  r.  Weston,  46  W.  Va.  544,  33  S.  E.  326,  overruling  sev- 
eral prior  cases. 

16.  Eastern  State  Hospital  v.  Graves,  105  Va.  151,  52  S.  E.  837. 

17.  Western  Lunatic  Asylum  r.  Miller.  29  W.  Va.  32fi.  1  S.  E.  740. 

18.  Cookus  t-.  Peyton,  1    Gratt.  431;    Walker  v.  Tyler,  94  Va.  534, 
27  S.  E.  434;    Handy  i<.    Smith,  30    W.  Va.    195,  3    S.  E.  604;    Cann  v. 
Cann,  40  W.  Va.  138,  20  S.  E.  910. 


382  LIMITATION  OF  ACTIONS  §  2191 

begins  to  run  from  that  date.  The  action  itself  is  a  demand.191 
Under  §  7  of  the  Negotiable  Instruments  Act,  the  following  in- 
struments are  payable  on  demand:  "(1)  Where  it  is  expressed' 
to  be  payable  on  demand  or  at  sight,  or  on  presentation,  or 
(2)  when  no  time  of  payment  is  expressed."  A  bond  or  note 
which  fixes  no  date  of  payment  or  is  expressed  to  be  payable- 
on  demand  is  due  and  payable  as  soon  as  it  is  executed  and 
delivered.  Where  paper  is  payable  so  many  days  after  demand 
it  means  that  number  of  days  after  actual  demand,  which  may- 
or may  not  be  on  the  day  of  the  date  of  the  paper.  If  pay- 
able at  sight,  it  would  seem  that,  independently  of  statute,  the 
paper  must  be  shown  for  payment,  and  that  the  act  begins  to 
run  from  the  latter  date.20  The  same  rule,  of  course,  would 
apply  to  paper  payable  after  sight,  that  is,  that  time  must  ex- 
pire after  the  paper  is  shown  for  payment. 

To  hold  an  endorser  bound  on  a  note  payable  on  demand,, 
there  must  be  an  actual  demand,  non-payment,  and  notice 
thereof,  and  until  then  the  statute  does  not  begin  to  run.21 

"If  a  demand  be  necessary  before  action,  the  statute  does 
not  begin  to  run  until  the  date  of  the  demand,  but  demand 
must  be  made  within  a  reasonable  time,  which  is  the  time  fixed 
by  the  statute  of  limitations,  if  not  made  before.  Where  no 
demand  is  shown  it  will  be  presumed  to  have  been  made  within 
that  period,  and  the  statute  will  then  run."22 

Courts  are  not  uniform  in  their  holdings  as  to  when  interest 
should  run  on  paper  payable  on  demand.  Some  hold  that  the 
interest  begins  only  with  actual  demand.  Probably  a  majority, 
including  Virginia,23  hold  that  interest  begins  with  the  date 
of  the  paper. 

(2)  Bank  deposits.  Whether  the  deposit  be  special 
(on  certificate)  or  general  (subject  to  check),  in  either  case 

19.  Laidlcy  v.  Smith,  32  W.  Va.  387,  9  S.  E.  209;    Newman  v.  Ket- 
tell,  (Mass.),  13  Pick.  418;  Omohundro  v.  Omohundro,  21  Gratt.  626; 
19  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  197. 

20.  Dan.    Neg.    Instruments,  §    1215;    19  Am.  &    Eng.    Encl.    Law 
(2nd  Ed.)   198. 

21.  Parker  v.  Stroude,  98  N.  Y.  379. 

22.  Thompson  v.  Whittaker,  41  W.  Va.  574,  23  S.  E.  797. 

23.  Omohundro  v.  Omohundro,  21   Gratt.  626. 


§   219  WHEN  THE  STATUTE  BEGINS  TO  RUN  383 

demand  is  necessary,  and  the  statute  does  not  begin  to  run  ex- 
cept from  the  date  of  the  demand  and  refusal.24 

(3)  Coupons.     Upon  coupons,   whether  attached  to  or  de- 
tached from  bonds,  the  statute  begins  to  run  from  the  maturity 
of  the  coupon.25 

(4)  Calls    on    stock.     As    between    a    corporation    and  its 
stockholders,    and    as    between    creditors    of    the     corporation 
and    stockholders,    where   calls   have    been   made   by   the   com- 
pany, and  also  by  the  court,  the  authorities  are  in  conflict  as 
to  whether  the  statute  begins  to  run  from  the  maturity  of  the 
call  by  the  company,  or  from  a  call  by  the  court.     In  Virginia 
the  statute  begins  to  run  from  the  maturity  of  the  call  by  the 
company.26     If  no  calls  have  been  made  by  the  company,  but 
one  has   been   made   by  the  court,   the   statute   begins   to    run 
from  the  maturity  of  the  call  made  by  the  court.27     Upon  a 
stock  subscription  made  by  parol  in  Virginia  the  limitation  is 
three  years  from  the  date  of  the  maturity  of  the  call  on  the 
stock.28 

(5)  Cloud  on  title.     This  is  a  continuing  wrong,  and  ordi- 
narily the  statute  does  not  begin  to  run  against  it  so  long  as 
it  exists. 

(6)  Covenant  for  general  warranty.     Generally  there  is  no 
breach  of  this  covenant  until  eviction,  or  what  is  regarded  as 
its   equivalent,    and   until   then   the   statute    does   not   begin   to 
run. 

(7)  Death  by  wrongful  act.    The  action  for  death  by  wrong- 
ful act  is  purely  statutory,  and  most  of  the  acts  are  modeled 
after  Lord  Campbell's  Act.     Where  this  is  true  it  is  said  that 
the  action  is  not  the  continuation,  survival,  or  revival,  of  the 
decedent's  cause  of  action,  but  is  a  new  and  independent  cause 
of  action,  in  which  the  measure  of  damages  is  not  the  same  as 

24.  Thompson  v.  Bank,  82  N.  Y.  1;  Gutch  v.  Fosdick,  48  N.  J.  Eq. 
353.  22  Atl.   590,  27  Am.   St.   Rep.  473. 

25.  Clark  r.  Iowa  City,  20  Wall.  586;  Amy  r.  Dubuque,  98  U.  S.  470. 

26.  See  discussion  and  cases  cited  in  Gold  v.  Paynter,  101  Va.  714, 
44  S.  E.  290. 

27.  Vanderwerken  v.   Glenn,  85  Va.  9,  6  S.   E.  806. 

28.  Bank  v.  Otterview  Land  Co.,  96  Va.  352,  31  S.  E.  511. 


384  LIMITATION    OF  ACTIONS  §   219 

in  an  action  brought  by  a  decedent,29  and  the  time  within  which 
the  action  is  to  be  brought  is  regulated  by  statute.  In  Vir- 
ginia it  is  one  year  from  the  death  of  the  decedent,  and  not 
from  the  date  of  the  injury.30  If  the  decedent  survives  the 
injury  more  than  a  year  and  a  day,  there  is  no  conclusive 
presumption  that  he  did  not  die  from  the  injury,  and  it  may 
still  be  shown  that  the  injury  was  the  proximate  cause  of  his 
death,  and  the  statute  will  begin  to  run  from  his  death.31  It 
seems  that  the  statutory  action  in  favor  of  a  personal  represent- 
ative may  still  be  brought,  notwithstanding  decedent's  right  of 
action  was  barred  at  the  time  of  his  death.32 

Under  the  Federal  Employers'  Liability  Act  applicable  to 
employees  of  railroad  companies  while  engaging  in  interstate 
commerce,  the  limitation  to  an  action  for  the  death  of  an  em- 
ployee is  two  years  from  the  day  the  cause  of  action  accrued. 

It  has  been  held  under  the  Virginia  statute  that  but  one  action 
can  be  maintained  to  recover  damages  for  an  injury  resulting 
in  death  as  there  is  but  one  cause  of  action  in  such  case.  An 
action  brought  by  an  injured  employee  who  subsequently  dies 
may  be  revived  in  the  name  of  his  personal  representative  after 
his  death,  or  a  new  action  may  be  brought  by  the  personal  rep- 
resentative.33 

(8)  Fraud  and  mistake.  Whether  at  law  the  statute  begins 
to  run  from  the  commission  of  the  fraud,  or  from  its  discovery, 
or  from  the  time  when  by  the  exercise  of  ordinary  diligence  it 
should  have  been  discovered  is  a  question  upon  which  the  au- 
thorities are  in  conflict.34  At  common  law  there  was  no  act  of 
limitations  outside  of  the  presumption  of  payment  and  pre- 
scription, and  hence  in  any  common-law  State  if  there  is  any 
limitation  on  any  demand  whatever  it  must  be  found  in  the  stat- 

29.  Anderson  v.  Hygeia  Hotel  Co.,  92  Va.  687,  24  S.  E.  269. 

30.  Code,  §  2903. 

31.  Louisville,  etc.,  R.  R.  Co.  v.  Clark,  152  U.  S.  230. 

32.  8  Am.   &   Eng.   Encl.   Law    (2nd    Ed.)    877,  and   cases   cited;   70 
Am.   St.   Rep.  669. 

33.  Brammer  r.  N.  &  W.  R.  Co.,  107  Va.  206,  57  S.  E.  593. 

34.  19  Am.  &  Eng.   Encl.  Law   (2nd  Ed.)   242,  247;   Rowe  v.   Bent- 
ley,  29  Gratt.  756.  760;  Callis  v.  Waddey,  2  Munf.  511;  Rice  v.  White, 
4  Leigh  474;  1   Rob.  Pr.  (old)  87,  110;  Code,  §  2933. 


§   219  WHEN  THE  STATUTE  BEGINS  TO  RUN  385 


ute.  If  not  found  there,  it  does  not  exist.  In  Virginia  it  is  pro- 
vided that  "every  personal  action,  for  which  no  limitation  is  oth- 
erwise prescribed,  shall  be  brought  within  five  years  next  after 
the  right,  to  bring  the  same  shall  have  accrued,  if  it  be  for  a 
matter  of  such  nature  that  in  case  a  party  die  it  can  be  brought 
by  or  against  his  representative;  and,  if  it  be  for  a  matter  not 
of  such  nature,  shall  be  brought  within  one  year  next  after  the 
right  to  bring  the  same  shall  have  accrued."35  This  section 
seems  broad  enough  to  cover  actions  for  fraud.  The  main  ques- 
tion of  difficulty  is  whether  the  statute  begins  to  run  from  the 
commission  of  the  fraud,  or  from  its  discovery.  It  has  been 
held  in  Virginia  that  no  lapse  of  time  and  no  delay  in  bringing 
a  suit,  however  long,  will  defeat  the  remedy  in  case  of  fraud  or 
mutual  mistake,  provided  the  injured  party  during  such  interval 
was  ignorant  of  the  fraud  or  mistake,  without  fault  on  his  part, 
and  that  the  duty  to  commence  proceedings  can  only  arise  upon 
discovery  of  the  fraud  or  mistake.36  But  the  case  in  which  this 
language  is  used  was  one  of  mistake  and  not  of  intentional  fraud, 
and  the  suit  was  in  equity  and  not  at  law.  At  law  the  statute 
probably  runs  from  the  commission  of  the  fraud.  In  West  Vir- 
ginia it  is  said  that  where  a  cause  of  action  arises  out  of  a  fraud, 
the  statute  of  limitations  runs  from  its  perpetration,  and  that  to 
deduct  the  period  during  which  a  party  is  ignorant  of  the  fraud, 
his  ignorance  must  arise  out  of  some  positive  act  on  the  part  of 
the  defendant.  Mere  silence  is  not  sufficient,  but  there  must  be 
some  act  designed  to  conceal  the  existence  of  liability  and  operate 
in  some  way  upon  the  plaintiff  to  prevent  or  delay  suit  for  it,  other- 
wise it  will  not  come  within  the  saving  clause  of  the  statute  di- 
rected against  obstructing  the  prosecution  of  a  right  "by  any  other 
indirect  ways  or  means.''37  This  rule,  however,  does  not  apply 
to  fraudulent  transfers  of  property.38  It  is  said  that  the  tend- 
ency of  modern  decisions  and  also  of  modern  statutes  is  to 
place  actions  at  law  on  the  same  footing  with  suits  in  equity, 

35.  Code.   §   2927. 

36.  Craufurd  v.  Smith.  93  Va.  623,  23  S.  E.  235. 

37.  Thompson  v.  Whittaker  Iron  Co.,  41  W.  Va.  754,  23  S.  E.  795; 
Code,  W.   Va.,   1906,   §   3511. 

38.  Thompson  v.  Whittaker  Iron  Co..  supra;   Bumgardner  r.   Har- 
ris, 92  Va.  188,  23  S.  E.  229. 

—25 


386  LIMITATION  OF  ACTIONS  §   219 

where  the  defendant  fraudulently  conceals  the  cause  of  action, 
and  to  start  the  statute  only  from  the  time  the  fraud  was,  or 
ought  to  have  been,  discovered.39  Equity  certainly  does  not 
apply  the  statute  in  case  of  fraud  or  mistake  except  from  the 
time  that  the  fraud  or  mistake  was,  or  should  have  been  discov- 
ered.40 Mere  ignorance,  however,  on  the  part  of  the  opposite 
party  will  not  prevent  the  running  of  the  statute.41  Money 
paid  under  a  mistake  of  law  with  knowledge  of  the  facts  can- 
not, according  to  the  weight  of  authority,  be  recovered  back  in 
the  absence  of  any  fraud  or  misconduct  on  the  part  of  the  payee.42 

(9)  Malicious  abuse  of  civil  process.     Time  runs  from  the 
termination  of  the  suit.43 

(10)  Voluntary  conveyances.    Generally  the  statute  runs  from 
the   time   of   discovery   of   the  right  to   avoid  the  conveyance, 
though   in   some   states  it   is   from  the  time  the  conveyance  is 
made.44     In  Virginia  it  is  provided  that  the  suit  shall  be  brought 
within  five  years  after  the  right  to  avoid  the  conveyance  has  -ac- 
crued.    The  debt  need  not  be  due.45     Formerly  it  was  neces- 
sary for  the  creditor  to  first  establish  his  debt  at  law,  but  now 
he  may  proceed  at  once  in  Virginia,  whether  his  debt  is  due  or 
not,  to  set  aside  the  conveyance  and  to  subject  the  property  con- 
veyed and  he  is  given  a  lien  from  the  time  of  the  institution  of 
his  suit.46     So  in  Virginia  it  would  seem  that  the  act  begins  to 
run  from  the  time  of  the  conveyance,  or  at  least  from  the  time 
of  the  recordation  of  the  conveyance  and  not  from  its  discov- 
ery, unless  the  failure  to  discover  the  existence  of  the  convey- 
ance resulted  from 'the  fraud  of  the  grantee.47     The  limitation 

39.  19  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  245,  note  2;  Bailey  v.  Glo- 
ver, 21  Wall.  342;  Traer  v.  Clews,  115  U.  S.  528. 

40.  Craufurd  v.  Smith,  93  Va.  623,  23  S.  E.  235;   Hull  v.  Watts.  95 
Va.  10,  27  S.  E.  829;  Rowe  v.  Bentley,  29  Gratt.  756,  760,  and  cases 
cited. 

41.  Vashon  v.  Barrett,  99  Va.  344,  38  S.  E.  200. 

42.  Note,   55  Am.    St.    Rep.   517,   and   cases   cited. 

43.  Note,  93  Am.  St.  Rep.  471,  and  cases  cited. 

44.  14  Am.  &  Eng.  Encl.   Law   (2nd   Ed.)   353. 

45.  Code,  §  2929. 

46.  Code.  §  2460. 

47.  Bickle  v.  Chrisman,  76  Va.  678;  Vashon  v.   Barrett,  99  Va.  :M4. 
7  Va.  Law  Reg.  36,  and  note,  38  S.  E.  200;  1  Va.  Law  Reg.  507. 


§   21^  WHEN'   T11K  STATUTE  BEGINS  TO  RUN*  387 

for  setting  aside  a  voluntary  conveyance  prescribed  by  the  Vir- 
ginia Code,  §  2929,  has  no  application  to  a  suit  to  set  aside  a 
conveyance  for  actual  fraud.  As  to  the  latter  there  is  no  limi- 
tation, though  the  right  may  be  lost  by  the  laches  of  the  cred- 
itor.48 

A  suit  to  set  aside  a  voluntary  conveyance  is  always  in 
equity.  Notwithstanding  the  fact  that  the  Virginia  statute 
gives  a  lien  from  the  filing  of  the  bill,  if  the  suit  be  brought  in 
the  Federal  court,  or  in  the  State  court  and  afterward  removed 
into  the  Federal  court,  the  Federal  courts  refuse  to  recognize  any 
such  lien,  and  hold  that  there  is  no  such  federal  equity  jurisdic- 
tion, and  that  the  plaintiff,  before  filing  a  bill  to  avoid  the  con- 
veyance, must  first  establish  his  debt  at  law  by  obtaining  a  judg- 
ment. Federal  courts  have  their  own  rules  of  procedure  in 
equity,  operating  uniformly  throughout  the  United  States,  and 
are  not  bound  by  State  statutes  in  such  matters.49 

(11)  Accounts.  The  act  begins  to  run  from  the  time  the 
account  is  due,  and  that  depends  upon  the  terms,  express  or  im- 
plied, upon  which  the  articles  are  sold.  It  is  provided  by  stat- 
ute in  Virginia  that  "upon  any  oral  contract,  express  or  implied, 
for  articles  charged  in  a  store  account,  although  such  articles 
be  sold  on  a  written  order,"  the  action  shall  be  brought  within 
two  years  next  after  the  right  to  bring  the  same  shall  have  first 
accrued.50  If  the  well-known  custom  of  the  merchant  is  to  sell 
on  credit,  until  the  end  of  the  week,  month,  half  year,  or  year, 
accounts  will  fall  due  at  these  periods  and  the  statute  begins  to 
run  from  that  date.  The  Code  of  1887  changed  the  phraseology 
of  this  statute  so  as  to  insert  the  words  "express  or  implied." 
Before  this  insertion,  it  had  been  held  that  the  statute  applied 
only  to  implied  promises  to  pay  the  account,  and  hence  if  there 
was  an  express  promise  to  pay  it,  the  limitation  was  five  years 
and  not  two,  and  this  was  the  view  of  Professor  Minor,51  but 

48.  Bumgardncr    v.    Harris,    92  Va.    188,  23  S.    E.  229;    1    Va.  Law 
Reg.  590;    Kinney  r.  Craig,  103  Va.  158,  165,  48  S.  E.  8G4. 

49.  Scott  v.  Neeley,  140  U.  S.  106;    Rollins  v.  Briarfield,  150  U.  S. 
371;  Gates  r.  Allen,   149  U.   S.  451. 

50.  Code,  §  2920. 

51.  4   Min.   Inst.   612,  613. 


388  LIMITATION    OF   ACTIONS  §    219 

the  construction  would  be  different  under  the  present  statute. 
Under  the  former  statute,  it  was  also  held  that  the  time  could 
be  extended  by  an  account  rendered.52  But  since  that  time 
it  has  been  held  that  an  account  stated  which  is  not  sup- 
ported by  a  writing  signed  by  the  debtor,  or  his  agent,  will 
not  prevent  the  running  of  the  statute  of  limitations  against 
previously  existing  items  of  indebtedness  included  therein.53 
As  to  mutual  accounts  between  parties,  growing  out  of  the  same 
transaction,  or  where  there  is  more  than  one  transaction,  and 
the  parties  have  agreed  to  run  accounts  with  each  other  for  a 
stated  period,  the  statute  begins  to  run  from  the  termination  of 
the  transaction  or  period,  as  the  case  may  be.  The  action  in 
such  case  is  for  the  balance  due,  and  not  for  the  items  of  the 
account.54 

(12)  Debt  acknowledged  in  a  will.     If  there  is  no  other  evi- 
dence of  a  debt  but  the  will,  or  if  the  will  is  relied  upon  as  a 
new  promise  or  acknowledgment,  the  statute  begins  to  run  from 
the  death  of  the  testator,  provided  the  will  fixes  no  time  of  pay- 
ment.55 

(13)  Judgments.     The  duration  of  the  life  of  a  judgment  is 
fixed  by  statute  in  each  State.     In  Virginia  the  lien  of  a  judg- 
ment on  land  continues  as  long  as  you  may  issue  a  ft.  fa.  on  the 
judgment    or  revive    the  judgment    by  a    scire  facias.     Upon  a 
judgment  a  writ  of  fieri  facias  may  be  issued  within  a  year,  and 
thereafter  other  writs  of  fieri  facias  may  be  issued  at  any  time 
within  ten  years  from  the  return  day  of  a  writ  upon  which  there 
has  been  no  return  by  an  officer,  or  within  twenty  years  from 
the  return  day  of  a  writ  upon  which  there  has  been  such  a  re- 
turn.    So  that  it  may  be  kept  alive  perpetually.     If  no  execution 
issues  within    the    year  the    judgment  may  be    revived  by  scire 
facias  at  any  time  within  ten  years  from  its  date.56     It  is  pro- 

52.  Radford  v.   Fowlkes,   85   Va.   820,   851-852,   8   S.   E.   817. 

53.  Magarity  v.  Shipman,  93  Va.  64,  24  S.  E.  466;    Stiles  v.  Laurel 
Fork  Oil  Co.,  47  W.  Va.  838,  35  S.  E.  986.     As  to  what  constitutes  an 
account  stated,  see  62  Am.  Dec.  81-96. 

54.  Green  v.  Disbrow,  75  N.  Y.  1,  35  Am.  Rep.  496. 

55.  Perkins  v.  Siegfried,  97  Va.  444,  34  S.  E.  64. 

56.  Post,  "Executions,"  and  cases  cited. 


§    219  WHEN  THE  STATUTE  BEGINS  TO  RUN  389 

vided,  however,  by  the  section  of  the  Code  just  cited  that  where 
the  scire  facias  or  action  is  against  the  personal  representative 
of  a  decedent,  it  shall  be  brought  within  five  years  from  his 
qualification,  thus  cutting  down  the  life  of  a  judgment  against 
a  judgment  debtor  who  dies  to  five  years  from  the  qualification 
of  his  personal  representative,  unless  within  that  time  the  judg- 
ment be  revived  by  scire  facias  or  an  action  be  brought 
thereon.57  No  suit  in  equity  can  be  maintained  to  enforce  a 
judgment  barred  at  law.58 

It  has  been  held  in  Virginia  that  if  an  execution  is  made  out 
and  signed  by  the  clerk  ready  for  delivery  to  the  officer  and 
marked  "To  lie,"  it  is  a  sufficient  issuance  within  the  meaning 
of  §  3677  of  the  Code,  although  it  has  not  been  placed  in  the 
hands  of  the  officer  to  be  levied.59 

(14)  Nuisance.     Where  the  injury  created  by  a  nuisance  is 
recurrent,  each  recurrence  of  the  nuisance  creates  a  new  cause 
of  action  upon  which  the  statute  begins  to  run  from  that  time ; 
but  if  the  nuisance  be  permanent  in  its  nature,  and  all  the  dam- 
ages which  will  flow  therefrom  can  be  recovered  in  a  single  ac- 
tion, the  statute  begins  to  run  from  its  original  creation.60 

(15)  Partners.     Until  the  affairs  of  a  partnership  are  settled 
and   all   outstanding   engagements   made   good,   the   partnership 
is  regarded  in  legal  contemplation  as  continuing,61  and  the  limi- 
tation to  a  suit  by  one  partner  against  another  for  the  settle- 
ment of  the  partnership  affairs  does  not  begin  to  run  until  the 
"cessation  of  the  dealings  in  which  they  are  interested  together." 
The  words  quoted  refer  to  the  time  when  the  affairs  of  a  part- 
nership are  wound  up,  and  not  to  the  cessation  of  active  opera- 
tions, but  the  parties  may  have  a  partial  settlement  of  partner- 
ship affairs  before  that  time,  or  may  bring  a  suit  for  such  set- 
tlement.62    Not  until  all  the  assets  are  collected  and  debts  paid, 

57.  Spencer  v.  Flanary,  104  Va.  395,  51  S.  E.  849. 

58.  Code,  §  3573. 

59.  Davis  v.  Roller,  106  Va.  46,  55  S.  E.  4. 

60.  Va.  Hot  Springs  Co.  r.  McCray,  106  Va.  461,  56  S.  E.  216;  Gulf 
Ry.  r.  Moseley  (C.  C.  A.),  161  Fed.  72. 

61.  Smith  r.  Zumbro,  41  W.  Va.  623,  24  S.  E.  653. 

62.  Foster  v.  Rison,  17   Gratt.  321. 


390  LIMITATION    OF    ACTIONS  §    219 

or  at  least  until  it  be  demonstrated  that  no  further  assets  can  be 
collected  or  debts  paid,  does  the  statute  begin  to  run.6"  The 
trouble  is  more  serious  where  the  statute  does  not  fix  the  time 
at  which  the  statute  is  to  begin  to  run.64 

(16)  Principal  and  surety.     Time  begins  to  run  from  pay- 
ment by  the  surety  of  the  debt  or  any  part  of  it,  and  the  obliga- 
tion is  an  open  account  liability,  although  .the  original  undertak- 
ing was  by  bond.65     If  the  surety  has  paid  the  debt  before  ma- 
turity, then  his  right  of  action  against  the  principal  does  not  be- 
gin to  run  until  the  maturity  of  the  original  debt.66 

(17)  Co-sureties.    The  surety  has  no  right  to  call  upon  a  co- 
surety until  he  has  paid  more  than  his  proportion  of  the  debt. 
"It  may  be  that  one  of  the  two  sureties  pays  half  of  the  debt; 
five  years   expire,   and   then  the  principal   pays   the   other  half. 
The  right  of  action  of  the  surety  against  his  co-surety  does  not 
exist  until  the  principal  has  paid  the  last  half,  for  until  that  is 
paid    the  surety    had  not    paid  more    than  his    proportion,    and 
could   not   recover    from   the    co-surety.      Consequently,    in    this 
case,  the  statute  of  limitations  does  not  begin  to  run  until  the 
principal  has  paid  his  half  of  the  debt.     The  endorser  of  a  note 
who  pays  it  in  whole  or  in  part  has  his  right  of  action  against 
the  principal,  and  that  right  of  action  accrues  at  the  time  of  pay- 

63.  Sandy  v.  Randall,  20  W.  Va.  245;    Smith  v.  Brown,  44  W.  Va. 
342,  30  S.  E.  160. 

64.  Note,  40  Am.  St.  Rep.  574-576. 

65.  Tate  v.  Winfree,  99  Va.  255,  37  S.  E.  956. 

66.  Attention  is  called  to  the  Virginia  statute  giving  a  surety  the 
right  to  require  a  creditor  to   sue,  or  else  release  the   surety.     If  a 
right  of  action  has  accrued,  the  surety  may  give  notice  to  the  creditor 
or  his  personal    representative  in  writing    forthwith  to    institute    suit 
thereon,  and  it  he  fails  to    prosecute  the    suit  with  due    diligence  to 
judgment,  he  forfeits  his  right  to  go  against  the  surety.     The  notice, 
however,  must  show  a  clear,  unequivocal,  and  distinct  demand  upon 
or  command   to    the   creditor    "forthwith  to    institute    suit    upon  the 
paper."     A  notice  to  take  such  action  as  is  necessary  to  get  the  en- 
dorser's name  off  a  note,  or  to  sue  one  of  the  parties  to  a  note,  is 
not  a  sufficient  compliance  with  the  statute.     Code,  §§  2890,  2891;  Ed- 
monson  v.  Potts,  111  Va.  79,  68  S.  E.  254.     Provision  is  also  made  by 
statute  in    Virginia  to  enable  a    surety  on    an  official    bond  to    be  re- 
lieved from   further  liability.     Code,   §  2887,  and   cases  cited  thereto. 


§   219  WHEN  THE  STATUTE  BEGINS  TO  RUN  391 

ment.  If  he  has  paid  the  whole  note  he  may  sue  upon  it  as  en- 
dorser, or  he  may  maintain  an  action  for  money  paid.  In  case 
the  note  itself  is  barred  by  the  statute  at  the  time  his  action  was 
brought,  five  [three]  years  having  elapsed  since  he  paid  the 
money,  it  seems  that  he  may  recover  for  money  paid  for  the 
use,  etc.,  though  if  he  sued  on  the  note  his  action  would  be 
barred.  A  contrary  rule  is  said  to  prevail  in  some  of  the  States, 
but  is  not  sustained  by  English  authorities,  nor  does  it  prevail 
in  Virginia."67 

(18)  Principal  and  agent.    In  case  of  a  general  or  continu- 
ing agency,  as  distinguished  from    a    special  or  isolated  agency, 
the  statute  of  limitation  runs  between  the  parties  to  it  from  its 
close.68     As  to  whether  the  relation  is  one  of  trust  or  not,  see 
Hasher  v.  Hasher,  96  Ya.  584,  32  S.  E.  41 ;  Wilson  v.  Miller, 
104  Ya.  466,  51  S.  E.  837. 

(19)  Attorney  and  client.     Attorneys  at  law  are  within  the 
general  statute  limiting  the  time  within  which  actions  for  breach 

67.  1   Barton   L.   Pr.   (2nd   Ed.)   106,   107. 

68.  "Where  there  is  an  isolated  or  special  agency,   one  for  a  par- 
ticular act  or  acts,  one  to  collect  a  specific  debt  or  debts,  the  statute 
begins  from  the  act  or  collection  in  each  particular  case;  but  where 
the    agency  has  currency,  is    continuous,  is    general,    involving    many 
acts,  or  a  course  of  business  involving  many  transactions,  the  statute 
begins  from  the  termination  of  the  agency.    The  contract  of  agency  is 
a  lump,  covering  several  years,  covering  many  items,  and  the  parties 
reserve  them  for  settlement  some  day  ahead.     You  cannot  start  the 
statute  at  date  of  each  collection  or  each  item  of  liability,  innumer- 
able items  in  an  account  which  both  sides  treated  as  open,  and  there 
is  a  necessity  to  fix  some  day.     1  Rob.  Pr.  488;    1  Wood    347,  349  n. 
2;    Angell,  Lim.,  §  181,  n.  2;    Hopkins  v.  Hopkins,  4  Strobh.   (S.  C.) 
Eq  207;    Estes  v.  Stokes,  2  Rich   (S.  C.)   320.     The  Virginia  case  of 
Riverview  Land  Co.  v.  Dance,  98  Va.  329,  35  S.  E.  720,  holds  that  in 
continuous  agencies  the  statute  begins  at  their  termination;  but  that 
if  the  law  gives  a  right  to  either  to  demand  payment  before,  it  runs 
from  demand  and  refusal.     No  doubt  there  can  be  a  demand  for  ad- 
justment giving  cause  of  action  at  once;  but,  as  a  general  rule,  in  the 
absence  of  special   circumstances,  changing  it,  as  there  may  be,  the 
statute  starts  at  ihe  close  of  the  agency.     The  books  show  that  the 
statute  applies  between  principal  and  agent.     It's  wise  policy  to  have 
an  end  of  liability  and  give  peace  of  mind,  happiness  of  life  and  to 
prevent  litigation,  should  be  liberally  applied,  as  well  to  this  relation 
as  others."     Rowan  r.  Chenoweth,  49  W.  Va.  287,  38  S.  E.  544. 


392  LIMITATION    OF   ACTIONS  §    219 

of  contract  must  be  brought.  They  do  not  occupy  such  a  rela- 
tion of  trust  towards  their  clients  as  would  debar  them  from 
pleading  the  statute  of  limitations.69  The  statute  begins  to  run 
from  the  time  the  cause  of  action  accrued,  and  not  merely  from 
the  time  the  damage  was  suffered,  unless  the  defendant  used 
fraud  to  conceal  the  wrong  done  until  a  right  of  action  had  be- 
come barred.70  For  funds  collected  by  him,  the  statute  begins 
to  run  from  the  time  that  the  attorney  should  have  paid  the 
money  to  his  client.  It  is  said  that  it  is  the  duty  of  the  atttorney 
when  he  has  collected  money  for  his  client,  to  give  him  notice 
and  to  pay  it  over  promptly  when  called  for  or  demanded,  but 
if  the  client  has  notice  of  it,  it  is  unnecessary  to  go  through  the 
idle  ceremony  of  giving  him  notice,  but  that  sometimes  the  at- 
torney is  enable  to  give  notice  to  his  client,  as,  for  example, 
where  he  is  out  of  the  country,  or  his  whereabouts  unknown,  or 
he  has  no  means  of  communicating  with  him.  In  such  cases,  he 
would  be  excused  from  giving  the  notice.71  But  if  the  where- 
abouts of  the  client  is  known,  it  is  the  duty  of  the  attorney  to 
give  him  notice  of  collections  and  to  pay  over  the  money,  and 
the  general  duty  of  the  creditor  to  seek  his  debtor  and  pay  him 
applies  to  attorneys  as  well  as  to  other  debtors.  There  is  con- 
flict of  authority,  however,  on  the  subject  of  the  necessity  for 
a  demand  of  payment  by  the  client.  Of  course  if -the  client  does 
not  know  of  the  fact  of  collection,  and  is  not  negligent  in  this 
respect,  no  demand  is  necessary,  especially  if  the  attorney  con- 
verts the  money  to  his  own  use.72  If  the  client  knows  of  the 
collection  of  funds  and  makes  no  demand  for  payment,  the 
statute  will  probably  run  from  the  date  of  the  acquisition  of 
that  knowledge.73  This  subject  is  regulated  to  some  extent 
in  Virginia  by  the  statute  cited  in  the  margin.74  Under  this 

69.  Kinney  v.  McClure,  1  Rand.  284. 

70.  3   Am.   &   Eng.    Encl.   Law    (2nd   Ed.)    399. 

71.  Pidgeon  v.  Williams,  21   Gratt.  251,  259. 

72.  1  Bart.  Law  Pr.  109. 

73.  Hasher  v.  Hasher,  96  Va.  584,  32  S.  E.  41,  a  case  of  attorney  in 
fact  and  principal. 

74.  Section  3200  of  the  Code  is  as  follows:  "Every  attorney  at  law- 
shall  be  liable  to  his  client  for  any  damage  sustained  by  him  by  the 
neglect  of  his  duty  as  such  attorney.     If  any  attorney  receive  money 
for  his  client  and  fail    to  pay    the    same    on    demand,    it    may    be  re- 


§   219  WHEN  THE  STATUTE  BEGINS  TO  RUN  393 

statute  it  would  'seem  that  a  demand  upon  the  attorney  and  re- 
fusal on  his  part  is  essential  to  subject  the  attorney  to  the  pen- 
alty therein  prescribed.  If  the  attorney  has  acted  in  good  faith, 
it  is  presumed  that  the  statute  of  limitations  will  begin  to  run 
from  the  time  of  collection,  or  within  a  reasonable  time  there- 
after. 

(20)  Express  trustees,  executors,  administrators,  guardians, 
etc.    Ordinarily  the  right  of  action  on  their  bonds  accrues  at,  and 
hence  the  statute  begins  to  run  from,  the  time  that  the  plaintiff 
has  the  right  to  demand  settlement,  or  payment,  or  delivery  of 
estate.     In  the  absence  of  statute  there  is  no  limitation  to  the 
right  to  sue  them  personally,  and  not  on  their  official  bonds.75 

(21)  Tenant  and  co-tenant.    The  right  of  a  tenant  to  enforce 
against  the  share  of  his  co-tenant  the  equitable  lien  arising  from 
the  payment  by  the  tenant  of  more  than  his  share  of  the  pur- 
chase money,  does  not  arise  until  suit  for  partition  is  brought, 
and  the  statute  of  limitations  has  no  application  to  such  suits.76 
Possession  of  one  co-tenant  is  the  possession  of  both,  and  the 
statute  does  not  begin  to  run  as  between  them  until  ouster  or 
its  equivalent.77     It  must  not  be  supposed,  however,   that  the 
tenant  could  npt  sue  his  co-tenant  personally   for  contribution. 

covered  from  him  by  warrant,  or  by  suit,  or  motion,  according  to  the 
amount;  and  damages  in  lieu  of  interest,  not  exceeding  fifteen 
per  centum  per  annum  until  paid,  may  be  awarded  against  him." 

"If  any  fiduciary  mentioned  before  in  this  chapter,  or  any  agent  or 
attorney  at  law,  shall,  by  his  negligence  or  improper  conduct,  lose 
any  debt  or  other  money,  he  shall  be  charged  with  the  principal  of 
what  is  so  lost,  and  interest  thereon,  in  like  manner  as  if  he  had  re- 
ceived such  principal."  Section  2676. 

75.  Redford  v.  Clarke,  100  Va.   115,  40  S.  E.  630,  7  Va.  Law  Reg. 
851;  Code,   §  2921. 

It  is  provided  by  statute  in  Virginia  that  if  the  fiduciary  has  set- 
tled an  account  under  the  provisions  of  ch.  121  of  the  Code,  a  suit  to 
surcharge  or  falsify  the  same  or  to  hold  such  fiduciary  or  his  sureties 
liable  for  any  balance  stated  in  such  account  to  be  in  his  hands  shall 
be  brought  within  ten  years  after  the  account  has  been  confirmed. 
Code,  §  2921. 

76.  Grove  r.  Grove,  100  Va.  556,  42  S.  E.  312;    Ballou  v.  Ballou,  94 
Va.  350,  26  S.  E.  840. 

77.  Fry  v.  Payne,  82  Va.  759,  1  S.  E.  197. 


.394  LIMITATION    OF   ACTIONS  §    219 

(22)  Landlord  and  tenant.     A  tenant  cannot  set  up  a  claim 
adverse  to  his  landlord  without  full  notice  to  the  landlord  of  the 
tenant's  disclaimer  to  hold  under  him,  or  his  assertion  of  an  ad- 
verse title,  but  such  notice  need  not  be  so  conclusive  as  to  pre- 
clude all  doubt.78     The  statute  begins  to  run  from  the  time  of 
.such  notice,  or  knowledge. 

(23)  Vendor  and  purchaser.      The  statute   will    not    com- 
mence to  run  in  favor  of  a  vendee  against  the  vendor  who  has 
retained  title  until  the  vendee  has  dissevered  the  privity  of  title 
between  them  by  the  assertion  of  an  adverse  right,  and  the  open 
and  continuous  disclaimer  of  the  title  of  his  vendor,  and  until 
such  disclaimer  has  been  clearly  brought  home  to  the  knowledge 
>of  the  vendor.79 

(24)  Assignor  and  assignee.     "The  right  of  action  by  an  as- 
signee against  his  assignor  accrues  when  the  assignee  is  defeated 
in  his  suit  against  the  debtor.      If  he  prevails  in  his  suit,  the 
statute  will  begin  to  rim  from  the  time  that  he  has  done  all  that 
the  law  requires  him  to  do  in  order  to  bind  his  assignor;  that 
is,  to  obtain  judgment,   issue  execution,   and  have  a  return  of 
nulla  bona."80 

(25)  Persons  under  disability.     While  statutes  of  limitation, 
as  previously  stated,  generally  contain  a  saving  clause  in  favor 
.of   infants,   married   women   and   other   persons   laboring  under 
disabilities,   it  is  entirely  competent  for  the  legislature   to  omit 
such  saving  clause,  and,  when  omitted,  statutes  of  limitation  ap- 
ply to  such  persons  as  though  no  disability  existed.81     In  Vir- 
ginia the  statute  of  limitations  makes  no  exception  in  favor  of 
married  women  in  respect  to  matters   relating  to,   or  affecting, 
their  separate  estates82  nor  as  to  the  right  to  make  entry  on  or 
to  bring  an  action  to  recover  land.     In  statutes  making  savings 
in  favor  of  persons  under  disability,  the  saving  is  confined  to 

78.  Reusens  v.  Lawstm,  91  Va.  226,  21   S.  E.  347. 

79.  Chapman  v.   Chapman,   91   Va.   397,  21   S.   E.   813. 

80.  1  Barton's  L.  Pr.   (2nd  Ed.)   107,  108;  Scates  v.  Wilson,  9  Leigh 
473. 

81.  Vance  v.  Vance,  108  U.  S.  514;  Schauble  v.  Schaultz  (C.  C.  A.), 
137  Fed.  389;  Jones  v.  Lemon,  26  W.  Va.  629;  Leonard  v.  Henderson, 
:23  Gratt.  331. 

82.  Code,  §§  2917,  2931. 


•§    220  WHAT    LIMITATION    IS   APPLICABLE  395 

disabilities  existing  at  the  time  the  right  of  action  accrues.  No 
other  disability  is  available  than  the  one  which  then  existed, 
and  no  disability  subsequently  arising  can  be  "tacked"  on  to 
the  one  so  existing,  for  instance  if  a  female  infant  marries  after 
the  right  accrues,  the  disability  of  coverture  cannot  be  "tacked" 
to  that  of  infancy,  but  if  both  exist  when  the  right  accrues  the 
statute  is  suspended  until  the  last  one  is  removed.  Here  there 
is  no  "tacking."83 

The  period  of  disability  of  a  married  woman  saved  to  her  as 
to  her  common  law  lands  by  §  2931  of  the  Virginia  Code  is  not 
allowed  where  action  is  brought  by  a  husband  and  wife  during 
the  coverture,  and  the  husband  is  living  at  the  time  of  trial.  But 
if  the  husband  be  dead,  and  the  action  survives  to  the  wife,  the 
period  of  her  coverture  is  deducted,  provided  the  whole  time 
•elapsing  from  the  time  the  right  of  action  accrued  until  action 
brought  does  not  exceed  twenty  years.84 

§  220.   What  limitation  is  applicable.85 

(1)  Tort  or  contract.  Whether  the  limitation  to  be  applied 
in  a  particular  case  is  a  tort  or  contract  limitation,  where  either 
may  be  brought,  is  determined  by  the  object  of  the  action,  and 
not  simply  by  its  form.  If  the  injury  sought  to  be  redressed  is 
merely  personal,  whether  resulting  from  breach  of  contract  or 
from  tort,  the  action  dies  with  the  person  and  the  tort  limitation 
applies.  M; 

The  following  distinction,  between  actions  for  tort  or  con- 
tract is  made  by  the  English  Court  of  Appeals :  "The  distinc- 
tion is  this:  If  the  cause  of  complaint  be  for  an  act  of  omis- 

83.  Parsons   v.    McCracken.   9    Leigh    495;    Blackweli  v.    Bragg,   78 
Va.  529;  Jones  v.  Lemon,  26  W.  Va.  629. 

84.  McMurray  v.  Dixon,  105  Va.  605,  54  S.  E.  481.     See  post,  note 
•21   to  §  221. 

85.  In  Virginia  the  limitation  on  contracts  under  seal  is  ten  years, 
on  contracts  in  writing  not  under  seal  five  years,  on  oral  contracts 
three  years,  on  store  accounts  two  years,  on  personal  torts  one  year. 
For  all  other  actions  for  which  no  limitation  is  prescribed  the  limi- 
tation is  five  years  if  the  action  would  survive  to  the  personal  repre- 
sentative, and  if  not,  one  year.     Code,  §§  2920,  2927. 

86.  Grubb   v.   Suit,   32   Gratt.   203;   Birmingham  v.  C.   &   O.,   98   Va. 
548,  37   S.   E.  17. 


396  LIMITATION    OP   ACTIONS  §    220 

sion  or  non-feasance  which,  without  proof  of  a  contract  to  do 
what  was  left  undone,  would  not  give  rise  to  any  cause  of  ac- 
tion (because  no  duty  apart  from  contract  to  do  what  is  com- 
plained of  exists)  then  the  action  is  founded  upon  contract,  and 
not  upon  tort.  If,  on  the  other  hand,  the  relation  of  the  plain- 
tiff and  the  defendants  be  such  that  a  duty  arises  from  that  re- 
lationship, irrespective  of  contract,  to  take  due  care,  and  the 
defendants  are  negligent,  then  the  action  is  one  of  tort."87 

(2)  Cases  on  contract.     Where  the  plaintiff  has  two  causes, 
of  action  upon  contract  open  to  him  and  elects  one,  and  adapts 
his  pleading  and  proof  thereto,  he  will  be  bound  by  his  election,, 
and  cannot  thereafter  adopt  the  other.     The  act  of  limitation 
applicable  will  be  the  one  appropriate  to  the  cause  of  action  se- 
lected.88 

(3)  Debt  assumed  by  grantee  in  a  deed.    The  assumption  by 
the  grantee  in  a  deed,  who  does  not  sign  it,  of  the  payment  of 
bonds  given  by  his  grantor  for  purchase  money,  is  a  simple  con- 
tract debt,  and  is  barred  in  Virginia  in  three  years   from  the 
time  of  assumption.89 

(4)  Coupons.     Coupons   are  mere  interest   certificates,   and 
when  annexed  to  bonds  partake    of  the  nature    of  the    bonds. 
They  are  intended  to  be  parts  and  parcels  of  the  principal  un- 
dertaking,  and   are   annexed    for   convenience   of   the   collection 
of  the  interest.     When  annexed  to  bonds  they  may  be  said  to 
be  little  bonds,  and  the  limitation  on  the  coupon  is  the  same  as 
that  applicable  to  the  principal  obligation.     They  mature,  how- 
ever, and  the  statute  begins  to  run  on  them  from  the  times  they 
are  payable,  and  not  from  the  time  when  the  original  undertak- 
ing is  payable.90 

87.  Kelly  v.  Met.   R.  Co.    (1895),   1   Q.  B.  944;  Atl.,  etc.,   R.  Co.  v. 
Laird,  164  U.  S.  393. 

88.  Noell  z.  Noell,  93  Va.  433,  25  S.  E.  242.     If  an  accommodation 
endorser  pays  a  note  he  may  sue  either  on  the  note,  or  on  the  im- 
plied contract  of  indemnity. 

89.  Taylor  v.  Forbes,   101  Va.  658,  44  S.   E.  333;   Harris  v.  Shields, 
112  Va.  — ,  69  S.  E.  933;  W.  Va.  R.  Co.  v.  Mclntire,  44  W.  Va.  210,  28- 
S.   E.  696. 

90.  Clark   v.   Iowa   City,   20   Wall.   583;   Amy  v.   Dubuque,   98   U.   S. 
470. 


§    220  WHAT   LIMITATION    IS   APPLICABLE  397 

(5)  Debt  secured  by  mortgage,  deed  of  trust,  or  pledge.     A 
debt  secured  by  mortgage,  deed  of  trust,  or  other  lien  may  be 
barred  so  that  no  action  can  be  brought  thereon,  but  the  lien 
still  remains  and  may  be  enforced.91     Whether  or  not  giving  se- 
curity for  a  prior  existing  debt  is  a  renewal  of  the  debt,  is  said 
to  be  a  question  upon  which  the  authorities  are  greatly  at  va- 
riance.92    Where  a  creditor  holds  a  pledge  or  collateral  security 
for  his  debt  he  may  enforce  the  debt  against  the  security,  al- 
though it  is  barred.93 

(6)  Lien  for  purchase  money.     In  the  absence  of  statute,  no 
time  bars  the     right  to  enforce    a    lien  reserved    for    purchase 
money.     Presumption  of  payment  from  lapse  of  time  and  laches 
will  alone  rebut  the  claim.94     In  Virginia  it  is  provided  by  Code, 
§  2935,  that  even  a  lien  reserved  for  the  purchase  price  of  prop- 
erty shall  not  be  enforced  after  twenty  years  from  the  time  the 
right  to  enforce  the  same  shall  have  first  accrued.     If,  however, 
the  title  is  retained  as  a  security  for  the  purchase  price  no  limi- 
tation is  fixed  for  the  time  of  its  enforcement.     The  fact,  how- 
ever, that  a  limitation  was  fixed  upon  all  other  liens  to  secure 
the  purchase  price  after  the  lapse  of  twenty  years  would  greatly 
strengthen  the  common  law  presumption  of  payment  after  that 
lapse  of  time,  and  this  presumption  would  be  well  nigh  as  effec- 
tive as  an  absolute  bar.     The  limitation  placed  upon  deeds  of 
trust  and  mortgages  by  §  2935  above  mentioned  has  no  applica- 
tion to  such  instruments  made  by  corporations. 

(7)  To  recover  damages  for  suing  out  an  injunction.    An  ac- 
tion  for  maliciously  and   without  probable   cause   suing  out  an 
injunction   whereby   the   operation   of   a   mill   was   suspended   is 
barred  in  one  year,  as  it  is  for  a  mere  personal  tort.95 

91.  Hanna  v.  Wilson,  3  Gratt.  243;  Bowie  v.  Poor  Society,  75  Va. 
300;  Tunstal!  v.  Withers,  86  Va.  892,   11  S.   E.  565;   Criss  v.  Criss,  28 
W.  Va.  388;  1  Va.  Law  Reg.  854,  and  cases  cited. 

92.  19   Am.   &   Eng.    End.   Law    (2nd    Ed.)    303;   Wolf  v.   Violet,   78 
Va.  57.     See  also  an  excellent  discussion  in  8  Va.  L.  Reg.  401;  Shep- 
herd v.  Thompson,   122   U.   S.   231;  post,  §   224. 

93.  Roots  v.   Salt  Co.,  27   W.  Va.   483. 

94.  Evans  v.  Johnson,  39  W.  Va.  299,  19  S.  E.  623. 

95.  Mumpower  v.  City  of  Bristol,  94  Va.  737,  27  S.   E.  581,  3  Va. 
L.  Reg.  439,  and  note. 


398  LIMITATION    OF   ACTIONS  §    220 

(8)  Principal  and  surety.    The  liability  of  a  principal  to  in- 
demnify the  surety  is  a  simple  contract  debt,  although  the  origi- 
nal debt  may  be  under  seal.96 

(9)  Death   by  wrongful  act.     "The  limitation  prescribed  by 
the  law  of  the  State  where  the  injury  occurred  governs  the  time 
within  which  the  action  must  be  brought,   regardless  of  where 
the  action  is  tried,  if  the  limitation  is  contained  in  the  act  creat- 
ing the  right  of  action.    But  where  the  statute  giving  the  right  of 
action  in  such   State  provides  no  limitation,  the  limitation  pre- 
scribed by  the  law  of  the  forum  will  govern."97 

(10)  Proceedings  in  federal  courts.     State  statutes  of  limita- 
tion are  as  a  rule  binding  on  Federal  courts.98 

(11)  Unmatnred  debts.     If  a  debt  is  payable  at  a  future 
day,  and  an  act  of  limitation  is  enacted  for  the  first  time,  or  an 
existing  act  is  changed,  the  act  in  force  when  the  debt  becomes 
due,  and  not  the  one  (if  any)  existing  when  the  debt  was  con- 
tracted, prevails  in  the  absence  of  any  saving  clause  in  the  stat- 
ute.99    The  Virginia  statute1  contains  no  such  saving  clause  as 
to  causes  of  action  which  had  not  matured  at  the  time  the  Code 
took  effect,  May  1,  1888. 

A  promise  to  pay  a  debt  after  a  certain  specified  debt  is  paid 
matures  when  the  specified  debt  should  have  been  paid  by  the 
debtor  if  of  ability  to  pay.  To  postpone  payment  when  able  to 
pay  is  a  fraud  on  the  other  creditor.2 

(12)  Foreign  contracts.     Upon  a  contract  made  in  one  State 
and  sought  to  be  enforced  in  another,  the    laws    of    the    latter 
(lex  fori)  generally  prevail,  but  the  rule  is  otherwise  where  a 

96.  Tate  v.  Winfree,  99  Va.  255,  37  S.   E.  956. 

97.  8  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  886,  and  cases  cited;  Greg- 
ory v.  Ry.    (D.  C.),  157   Fed.   113;   Dowell  v.   Cox,   108  Va.  460,  62  S.. 
E.  388. 

98.  Bauserman  v.  Blunt,  147  U.  S.  647,  652;  Leffingwcll  v.  Warren, 
2  Black.  599. 

99.  19  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  168,  176;  Smith  v.  Ins.  Co., 
112  Va.  — ,  70  S.   E.  482. 

1.  Code,   §    2938. 

2.  Solenbcrger  v.  Strickler,  110  Va.  273,  65  S.  E.  566. 


§   221  WHAT    STOPS   RUNNING   OF    STATUTE  399 

statute  creates  a  new  liability  which  did  not  exist  at  common 
law,  and  prescribes  the  period  of  limitation.3 

(13)  Foreign  judgments.  It  is  expressly  provided  by  statute 
in  Virginia  that  "every  action  upon  a  judgment  or  decree  ren- 
dered in  any  other  State  or  country  shall  be  barred,  if  by  the  laws 
of  such  State  or  country  such  action  would  there  be  barred,  and 
the  judgment  or  decree  be  incapable  of  being  otherwise  en- 
forced there ;  and  whether  so  barred  or  not  no  action  against  the 
person  who  shall  have  resided  in  this  State  during  the  ten  years 
next  preceding  such  action  shall  be  brought  upon  any  such  judg- 
ment or  decree,  rendered  more  than  ten  years  before  the  com- 
mencement of  such  action."4 

§  221.  What  stops  or  suspends  the  running  of  the  statute. 

When  the  statute  begins  to  run,  nothing  will  stop  or  suspend 
it  except  what  is  expressly  so  provided  by  the  statute.  Neither 
marriage,  death,  insanity,  removal  from  the  State,  nor  any  other 
cause  will  suspend  its  operation  unless  expressly  so  provided.5 
Such  statutes  usually,  however,  except  from  their  operation  in- 
fants, insane  persons  and  married  women  during  the  period  of 
their  disability  and  for  a  reasonable  time  thereafter,  and  also 
exclude  from  the  computation  the  time  during  which  any  party 
may,  by  absconding,  concealing  himself,  or  by  any  other  indi- 
rect ways  or  means,  obstruct  the  prosecution  of  a  legal  right.0 
As  these  are  common  exceptions,  it  will  be  necessary  to  consider 
them  somewhat  more  in  detail,  also  to  consider  the  effect  of  the 
amendment  of  pleadings. 

(1)  Commencement  of  action.  The  commencement  of  an 
action  of  course  stops  the  running  of  the  statute,  and  is  gen- 
erally the  only  thing  that  will  stop  it.  Other  causes  may  sus- 
pend it  for  a  time,  but  the  commencement  of  an  action  stops 
it.  The  language  of  the  statutes  usually  is  that  every  action 
of  a  designated  kind  shall  be  brought  within  a  specified  number 

3.  Urton  v.  Hunter,  2  W.  Va.  83;  Brunswick  Terminal   Co.  v.  Na- 
tional Bank.  99  Fed.  635,  5  Va.  Law  Reg.  787. 

4.  Code,  §  2928. 

5.  Vance  r.  Vance.  108  U.   S.   574;   Ins.   Co.  v.   Hall,   12   Mich.  202. 

6.  Code.  §  2933. 


400  LIMITATION   OF   ACTIONS  §   221 

of  years  from  the  time  the  right  accrues,  or  that  no  action 
shall  be  brought  except  within  a  given  time  after  the  right 
accrues.  Hence,  if  the  action  be  brought  within  the  time  speci- 
fied, it  of  necessity  stops  the  statute  from  running.  What 
constitutes  the  commencement  of  an  action  so  as  to  stop  the 
running  of  the  statute  is  a  question  about  which  there  is  serious 
conflict  of  authority.  In  Virginia  it  is  provided  that  proc- 
ess to  commence  a  suit  shall  be  a  summons  and  that  it  shall 
be  "issued"  on  the  order  of  the  plaintiff,  his  attorney  or  agent.7 
On  the  one  hand  it  is  claimed  that  when  the  plaintiff  has  made 
his  memorandum  and  the  clerk  has  filled  out  the  writ  for  the 
purpose  of  .delivery,  this  is  all  that  can  be  required  of  him. 
On  the  other  hand,  it  is  insisted  that  to  "issue"  is  to  put  forth, 
to  send  out,  to  deliver  by  authority,  and  hence  that  the  writ 
or  summons  must  not  only  be  filled  out,  but  delivered,  or  at 
least  put  in  the  course  of  delivery  to  some  one  who  may  legally 
serve  it.  The  latter  view  would,  on  principle,  seem  to  be 
preferable.8  The  references  in  the  margin  will  show  the  au- 
thorities for  the  different  views.9  In  Davis  v.  Roller,  106  Va. 
46,  55  S.  E.  4,  a  writ  of  fieri  facias  was  simply  filled  out 
by  the  clerk  and  never  sent  out,  but  marked  "to  lie"  and  this 
was  held  a  sufficient  "issuance"  under  the  statute  authorizing 
the  issuance  of  other  executions  thereafter.  The  endorsement 
"to  lie"  would  seem  to  indicate  that  there  never  was  any  bona 
fide  intention  that  the  writ  should  be  put  in  the  hands  of  an 
officer  to  be  executed.  In  Homestead  Ins.  Co.  v.  Ison,  110  Va. 
18,  it  is  more  properly  said  that  the  legal  definition  of  "issuance" 
is  "to  send  out  officially,  to  deliver  for  use,  to  put  into  circu- 
lation." If  the  latter  view  of  issuance  be  adopted,  then  the  con- 
clusion of  the  author  of  the  article  in  12  Va.  Law  Reg.  675  is  the 
correct  view. 

Where   the    record    shows   that   suit   or   action   was   brought 

7.  Code,  §  2233. 

8.  See  Davis  v.  Roller,  106  Va.  46,  55  S.  E.  4,  construing  the  word 
"issue"    as    applied    to    executions.      See    also    Lawrence   v.    Winifred 
Coal  Co.,  48  W.  Va.  143,  35  S.  E.  925,  and  cases  cited. 

9.  8  Va.  Law  Reg.  624,  and  cases  cited;  12  Va.  Law  Reg.  675,  and 
cases  cited;  note,  15  Am.  Dec.  341;  Compare  Davis  v.  Roller,  supra, 
and  Homestead  Ins.  Co.  v.  Ison,  110  Va.  18,  65  S.  E.  463. 


§    221  WHAT  STOPS  RUNNING  OF  STATUTE  401 

within  the  time  prescribed  by  the  statute  of  limitations,  the 
court  will  take  judicial  notice  of  the  date  of  the  writ  in  order 
to  ascertain  the  time  of  the  institution  of  the  suit.  The  date  of 
the  writ  is  usually  conceded  to  be  prima  facie  evidence  of  the 
time  of  issuance.10  If  the  proceeding  is  by  motion  to  recover  a 
judgment  for  money  under  §  3211  of  the  Code  of  Virginia,  the 
action  cannot  be  deemed  commenced  within  the  meaning-  of 
the  attachment  law  until  the  notice  has  been  executed  and  re- 
turned to  the  clerk's  office.11  By  parity  of  reasoning,  the  act 
of  limitations  would  not  cease  to  run  until  the  same  time. 

If  a  plaintiff  suffers  a  non-suit  and  his  cause  is  afterwards 
reinstated  on  the  docket  there  is  in  legal  contemplation  no 
break  in  the  continuity  of  his  action,  and  the  date  of  the  in- 
stitution of  the  original  action  is  the  proper  test.  It  is  other- 
wise if  the  action  is  not  reinstated.12 

If  an  action  brought  in  due  time  be  dismissed  for  failure 
of  the  plaintiff  to  file  his  declaration  in  the  time  prescribed 
by  law  and  a  second  action  be  brought  for  the  same  cause, 
the  time  during  which  the  first  action  is  pending  is  not  deducted 
in  computing  the  period  of  limitation.  The  dismissal  for  such 
cause  is  in  the  nature  of  a  voluntary  non-suit.13 

10.  Sands  v.  Stagg,  105  Va.  444,  52  S.  E.  633. 

11.  Furst  Bros.  v.  Banks,  101  Va.  208,  42  S.  E.  360. 

12.  Manuel  z>.  X.  &  W.  R.  Co.,  99  Va.  188,  37  S.  E.  957.     See  also 
Wickham  i:   Green,   111  Va.  199,  68  S.  E.  259. 

13.  Lawrence  v.  Winifred  Coal  Co.,  48  W.  Va.  139,  35  S.  E.  925; 
Wickham  v.  Green,  111  Va.  199,  68  S.  E.  259. 

Section  2934  of  the  Code  of  Virginia  is  as  follows:  "If  an  action 
commenced  within  due  time  in  the  name  of  or  against  one  or  more 
plaintiffs  or  defendants  abate  as  to  one  of  them  by  the  return  of  no 
inhabitant  or  by  his  or  her  death  or  marriage,  or  if  in  an  action  com- 
menced within  due  time  judgment  for  the  plaintiff  shall  be  arrested 
or  reversed  upon  a  ground  which  does  not  preclude  a  new  action 
for  the  same  cause,  or  if  there  be  occasion  to  bring  a  new  suit  by 
reason  of  the  loss  or  destruction  of  any  of  the  papers  or  records  in 
a  former  suit  which  was  in  due  time,  or  if  :n  any  pending  case  or 
in  any  action  or  suit  hereafter  commenced  within  due  time  in  any 
of  the  courts  of  this  commonwealth,  the  plaintiffs  proceed  or  have 
proceeded  in  the  wrong  forum  or  bring  the  wrong  form  of  action 
or  against  the  wrong  defendant,  and  judgment  is  rendered  against 

—26 


402  LIMITATION    OF   ACTIONS  §    221 

(2)  Amendment  of  Pleadings.     If   the   amendment   sets   up 
no  new  cause  of  action  or  claim,  and  makes  no  new  demands, 
but    simply    varies    and  expands    the  original    cause    of    action, 
the  amendment  relates  back  to  the  commencement  of  the  action 
and  stops  the   running  of  the   statute   as  of  that  date;  but  an 
amendment  which   introduces   a  new   or  different  cause   of   ac- 
tion, or  makes  a  new  or  different  demand,  does  not  relate  back 
and  the  statute  continues  to  run  till  date  of  amendment.14     If 
the  amendment  simply  consists  in  claiming  larger  damages  than 
were  claimed  in  the  original  declaration,  the  statute  stops  run- 
ning at  the  commencement  of  the  action,  and  not  at  the  time 
of   making  the   amendment.15 

Generally,  where  neiu  parties  are  introduced  by  the  amend- 
ment, the  statute  continues  to  run  up  to  the  time  of  the  amend- 
ment, so  far  as  it  affects  the  rights  of  such  new  parties.10  See 
particularly  Code,  §  2934,  as  to  suspension  in  certain  cases.17 

(3)  Removal  from  State.    In  Ficklin  v.  Carrington,  32  Gratt. 
219,  it  was  held  that  removal  from  the  State  after  creating  a 
debt  was   of  itself   an  obstruction  which   would  stop  the  run- 
ning of   the   statute.      This   holding  is   apparently   overruled   in 
Brown  v.   Butler,   87  Va.   621,   13   S.   E.   71,   citing  Wilson  v. 

the  plaintiff  solely  upon  such  ground,  in  every  such  case,  notwith- 
standing the  expiration  of  the  time  within  which  a  new  action  or  suit 
must  otherwise  have  been  brought  the  same  may  be  brought  within 
one  year  after  such  abatement  or  arrest  or  reversal  of  judgment  or 
loss  or  destruction  or  judgment  against  the  plaintiff,  but  not  after, 
provided,  however,  that  the  time  that  any  such  action  or  suit  first 
brought  shall  be  pending  in  any  appellate  court  shall  not  be  in- 
cluded in  the  computation  of  said  year." 

14.  Whalen  v.   Gordon,   95   Fed.   305,  and   cases  cited;   16   C.   C.  A. 
508,  and  note;  5  Va.  Law  Reg.  411,  and  cases  cited;  note,  50  Am.  St. 
Rep.  737;  New  River  Min.  Co.  v.  Painter,  100  Va.  507,  8  Va.  Law  Reg, 
430,  and  note;  note,  51  Am.  St.  Rep.  430;  Stout  v.  Vance,  1  Rob.  (Va.) 
169;  Morrison  v.  Householder,  79  Va.  627;  Lusk  v.  Kimball,  4  Va.  Law 
Reg.  731;  Lamb  v.  Cecil,  28  W.  Va.  653;  Kuhn  v.  Brownfield,  34  W. 
Va.   352,   12   S.   E.   519. 

15.  Bentley  v.  Standard  F.  Ins.  Co.,  40  W.  Va.  729,  23  S.  E.  584. 

16.  I  Encl.  of  PI.  and  Pr.  623,  a.nd  cases  cited;  Richmond  v.  Sitter- 
ding,  101  Va.  354,  43  S.  E.  562. 

17.  Griffin  v.  Woolford,  100  Va.   473,  41   S.   E.  749. 


§    221  WHAT    STOPS    RUNNING   OF    STATUTE  403 

Koontz,  7  Cranch  202,  but  is  reaffirmed  in  Cheatham  v.  Aistrop, 
97  Ya.  457,  34  S.  E.  57. 

In  Embry  r.  Jemison,  131  U.  S.  336,  it  was  held  that  §  2933 
of  the  Code,  relating  to  removal  from  the  State,  does  not  ap- 
ply when  the  defendant,  though  once  a  resident  of  the  State, 
removed  therefrom  before  any  right  of  action  accrued  against 
him,  and  before  the  transaction  occurred  out  of  which  the  plain- 
tiff's cause  of  action  arose.  The  same  doctrine  is  held  in 
Griffin  v.  Woolford,  supra.  In  Abell  v.  Perin,  18  W.  Va.  400, 
it  was  held  that,  where  a  contract  was  made  out  of  the  State 
to  be  performed  in  the  State,  with  the  plaintiff,  a  citizen  and 
resident  of  the  State,  by  a  defendant  who  had  been  a  resident 
of  the  State,  but  is  then  temporarily  absent  from  it,  the  time 
during  which  the  defendant  remains  out  of  the  State  is  not  to 
be  computed  as  any  part  of  the  time  within  which  the  creditor 
is  required  by  the  statute  of  limitations  to  prosecute  his  action 
on  the  contract. 

The  continued  non-residence  of  the  maker  of  a  note  who 
was  never  a  resident  of  this  State  did  not  prevent  the  running 
of  the  statute  as  it  existed  prior  to  the  amendment  of  1897-98.18 
Under  Code,  §  2933,  as  amended  by  acts  of  1897-98,  p.  441, 
"continuing  to  reside  without  the  State"  is  made  an  obstruction, 
and  such  time  is  not  counted  in  computing  the  time  within 
which  an  action  is  to  be  brought. 

If  a  non-resident,  owning  effects  in  this  State,  makes  a 
simple  contract,  to  be  performed  in  this  State,  and  then  dies 
outside  of  this  State,  before  the  accrual  of  a  right  of  action 
on  such  contract,  the  action  must  be  brought  within  the  statu- 
tory period,  notwithstanding  the  amendment  above  mentioned, 
as  the  debtor,  having  died  before  the  plaintiff's  cause  of  action 
accrued,  did  not,  and  could  not,  obstruct  its  prosecution.19 

(4)  Infancy.  It  has  been  pointed  out  that  the  statute  need 
not  make  any  saving  in  favor  of  infants  or  other  persons  under 
disability,  but  they  usually  do.20  A  common  provision  is  that 
if  any  person  to  whom  the  right  accrues  under  the  act  shall, 

18.  Griffin  v.  Woolford,  supra;  Door  r.  Rohr,  82  Va.  359,  3  Am.  St. 
Rep.  106. 

19.  Templeman  r.   Pugh,   102   Va.   441.   46   S.   E.   474. 

20.  Ante,  §  212. 


404  LIMITATION    OF    ACTIONS  §    221 

at  the  time  the  same  accrues,  be  an  infant,  married  woman, 
or  insane,  the  same  may  be  brought  within  a  like  number  of 
years  after  he  has  become  of  full  age,  unmarried,  or  sane,  that 
is  allowed  to  a  person  having  no  such  impediment  to  bring  the 
same  after  the  right  accrues,  except  that  it  shall  in  no  case 
be  brought  after  a  given  number  of  years  from  the  time  when 
the  right  accrues.21  In  Virginia,  the  exception  in  favor  of 
married  women  does  not  apply  in  cases  relating  to  or  affecting 
their  separate  estates.22 

(5)  Death.  The  running  of  the  statute  is  not  affected  by 
the  death  of  either  the  creditor  or  the  debtor,  in  the  absence 
of  a  statute  so  providing.23  In  Virginia  it  is  provided  that  "the 
period  of  one  year  from  the  death  of  any  party  shall  be  ex- 
cluded from  the  computation  of  time  within  which,  by  opera- 
tion of  any  statute  or  rule  of  law,  it  may  be  necessary  to 
commence  any  proceeding  to  preserve  or  prevent  the  loss  of 
any  right  or  remedy."24  It  is  further  provided  that  "the  right 
of  action  against  the  estate  of  any  person  hereafter  dying,  on 
any  such  award  or  contract  which  shall  have  accrued  at  the 
time  of  his  death,  or  the  right  to  prove  any  such  claim  against 
his  estate  in  any  suit  or  proceeding  shall  not  in  any  case  con- 
tinue longer  than  five  years  from  the  qualification  of  the  per- 
.  sonal  representative,  or  if  the  right  of  action  shall  not  have 
accrued  at  the  time  of  the  decedent's  death,  it  shall  not  continue 
longer  than  five  years  after  the  same  shall  have  so  accrued."25 

It  is  further  provided : 

"If  a  person  die  before  the  time  at  which  any  right  mentioned 
in  this  chapter  would  have  accrued  to  him  if  he  had  continued 

21.  Code,  §  2931.     In  Virginia,  not  exceeding  twenty  years. 

22.  Code,   §§  2917,   2931. 

23.  Rowan  v.  Chenoweth,  49  W.  Va.  287,  38  S.  E.  544. 

24.  Code,   §  2919.     This  section  also  provides  that  there  "shall  be 
excluded  from  the  computation  the  time  within  which,  by  the  terms 
or  operation  of  any  statute  or  rule  of  law,  it  may  be  necessary  to 
commence   any  action  or  other  proceeding,  or  to  do   any  other  act 
to  preserve  or  prevent  the  loss  of  any  civil  right  or  remedy,  or  to 
avoid  any  fine,  penalty,  or  forfeiture,"  the  period  between  the  seven- 
teenth   day  of  April,   1861   and  the   first  day  of  January,   1869,   com- 
monly known  as  the  Stay  Law. 

25.  Code,  §  2920. 


§    221  WHAT    STOPS    RUNNING    OF    STATUTE  405 

alive,  and  there  be  an  interval  of  more  than  five  years  between 
the  death  of  such  person  and  the  qualification  of  his  personal 
representative,  such  personal  representative  shall,  for  the  pur- 
poses of  this  chapter,  be  deemed  to  have  qualified  on  the  last 
day  of  the  said  five  years."20 

The  foregoing  section  seems  to  indicate  that,  if  a  party  died 
before  a  right  in  his  favor  accrued,  the  statute  would  not 
begin  to  run  until  after  the  qualification  of  his  personal  repre- 
sentative, actually  or  constructively,  and  this  is  the  view  taken 
of  the  prior  statute  of  limitations  in  Virginia.27 

It  will  be  observed  that  §  2920  is  applicable  only  to  awards 
and  contracts.  It  is  provided  by  §  3577  that  if  a  judgment 
debtor  dies,  the  lien  of  the  judgment  will  be  lost,  unless  the 
judgment  is  revived  against  his  personal  representative  or-  ac- 
tion be  brought  thereon  within  five  years  from  the  qualifica- 
tion of  his  personal  representative.28 

6)  Inability  to  serve  process.  In  some  jurisdictions  it  is 
held  that  the  mere  inability  to  serve  process  upon  a  defendant, 
caused  by  his  intentional  elusion  of  it,  is  no  excuse  for  not 
commencing  an  action  within  the  prescribed  period.29  In  the 
case  first  cited  in  the  margin  there  was  no  obstruction  to  the 
institution  of  the  action,  but  the  parties,  seeing  that,  because 
the  chief  officers  of  the  town  resigned,  they  could  get  no  service 
of  process,  did  not  bring  their  action.  The  court  said  that  this 
was  a  very  different  case  from  suspending  the  running  of  the 
act  during  the  existence  of  a  fraud  of  which  the  plaintiff  did 
not  know,  for  then  the  plaintiff  could  not  know  that  he  had  a 
cause  of  action,  while  here  he  knew  it,  but  failed  to  sue  because 
he  thought  he  could  not  get  service  of  process.  Whether  this 
case  would  be  followed  elsewhere  depends  largely  on  the  phrase- 
ology  of  the  particular  statute.  It  would  probably  not  be  fol- 
lowed in  Virginia,  in  view  of  the  language  of  the  Code,  §  2933. 

26.  Code,   §   2932. 

27.  Hansfort  v.  Elliott,  9  Leigh  79;  Bowles  r.  Elmore,  7  Gratt.  393. 

28.  Code,  §  2920;  Spencer  r.  Flanary,  104  Va.  395,  51  S.   E.  849. 

29.  Amy  r.   Watertown,   No.   2,   130   U.   S.   320.      In   Wisconsin   the 
statute  does  not  stop  running  until  service  of  process  or  an  attempt 
to  serve  followed  by  service  or  publication  within  sixty  days.     Knowl- 
ton  v.  Watertown,  130  U.  S.  327. 


406  LIMITATION  OF  ACTIONS  §    222 

IN  EQUITY. — A  creditor's  bill,  filed  by  a  creditor,  suing  on 
behalf  of  himself  and  others,  or  an  order  for  an  account  of 
debts  or  liens,  as  the  case  may  be,  stops  the  running  of  the 
statute  as  to  all  creditors  who  ultimately  come  in  and  prove 
their  claims,  but  not  as  to  others.30 

§   222.    How  defence  of  statute  is  made. 

At  law.  The  defence  of  the  statute  of  limitations  may  be 
raised  (1)  by  demurrer,  where  it  is  of  the  right  and  not  of 
the 'remedy;  (2)  by  special  plea — this  is  ordinarily  necessary; 
(3)  under  the  general  issue,  where  it  is  a  basis  of  title,  as 
in  ejectment  and  detinue;  (4)  by  instructions,  where  there  has 
been  no  opportunity  to  plead  it,  as  in  case  of  replication  to  a 
plea  under  Virginia  Code,  §  3299. 

(1)  By  demurrer.     It  has   already  been   pointed  out31   that 
where  a  statute  confers  a  right  for  the  first  time  and  at  the 
same  time   fixes   a   period   within   which  the   right   may   be   en- 
forced,  then  the   limitation   is   of   the   right  and  not  merely  of 
the   remedy.     Where   the   limitation   is   of   this   nature,   it  must 
be  alleged  in  the  pleadings  and  proved  on  trial  that  the  right 
existed  at  the  time  of  the  institution  of  the  action,  and  a  failure 
to  allege  in  the  declaration  when  the  right  accrued  will  be  good 
ground  of  demurrer  as  it  does  not  show  the  present  existence 
of  a  right  conferred  by  the  statute.32 

(2)  By  special  plea.     This  is  generally  the  proper  and  only 
method.     The  others  are  exceptions.     If  this  were  not  true,  the 
plaintiff  would  be   compelled  to   set  out  his   whole  case  in   his 
declaration,   including  not  only  the  grounds   of  his   action,   but 
also   excuses    for   not   sooner  bringing   it,   or   else  he   would  be 
cut  off  from  relying  upon  a  new  promise  in  writing,  coverture, 
infancy,   insanity   and   many  other   answers   to   the   plea.     It   is 
especially  necessary  in  those  jurisdictions  which,  like  Virginia, 
allow  the  plaintiff  either  to  bring  his  action  on  the  old  promise 
and   reply  to  the  new,  or  else  to  bring  it  on  the  new.33     The 

30.  Callaway  v.  Saunders,  99  Va.  350,  38  S.  E.  132. 

31.  Ante,  §  217. 

32.  Manuel  v.  N.  &  W.  R.  Co.,  99  Va.  188,  37  S.   E.  957. 

33.  Code,  §  2922. 


§    222  HOW  DEFENCE  OP  STATUTE  IS  MADE  407 

form  of  the  plea  is  as  follows:  And  the  said  defendant,  by 
his  attorney,  comes  and  says  that  the  supposed  cause  of  action 
in  the  declaration  mentioned  did  not  accrue  to  the  said  plaintiff 
at  any  time  within  -  -  years  next  before  the  commencement 
of  this  action  in  manner  and  form  as  the  said  plaintiff  hath 
above  complained  against  him,  and  this  the  said  defendant  is 
ready  to  verify. 


p.  d. 

As  a  general  rule,  subject  to  exceptions  to  be  pointed  out 
in  the  next  section,  the  defence  is  purely  personal  to  the  debtor, 
and  if  not  made  by  him  in  the  proper  manner  is  deemed  to 
have  been  waived.34 

(3)  Shown  under  the  general  issue.  In  ejectment  and  detinue 
the  statute  of  limitations  need  not  be  pleaded  by  the  defendant, 
but  adverse  possession  in  him  may  be  shown  under  the  gen- 
eral issue,  because  such  adverse  possession  does  not  only  bar 
the  remedy  of  the  plaintiff  but  takes  the  right  from  him  and 
vests  it  in  the  defendant,  thereby  giving  him  superior  title.35 
The  reasons  for  allowing  the  statute  to  be  relied  upon  in  this 
manner  and  the  difference  between  the  use  of  the  statute  as  a 
muniment  of  title  and  as  a  mere  bar  or  obstacle  to  the  en- 
forcement of  a  personal  assumpsit  are  well  set  forth  by  Rob- 
ertson, C.  J.  in  Smart  i:  Baugh  (Ky.),  3  J.  J.  Marshall  364, 
which  was  an  action  of  detinue  to  recover  a  slave.  He  says : 
"The  plea  is  non  detinet  in  the  present  tense,  and  under  this 
plea  anything  which  will  show  a  better  right  in  the  defendant 
than  in  the  plaintiff  may  be  admitted  as  competent  evidence. 
The  plea  puts  in  issue  the  plaintiff's  right.  Five  years  uninter- 
rupted adverse  possession  of  a  slave  not  only  bars  the  remedy 
of  the  claimant  out  of  possession,  but  vests  the  absolute  legal 
right  in  the  possessor.  Therefore,  proof  of  such  possession 
may  show  that  the  claimant  had  no  right  to  the  slave  and 
cannot  recover.  Consequently,  it  would  seem  to  result  from 
the  reason  of  the  case  that  the  adverse  possession  may  be 

34.  Smith  r.  Hutchinson,  78  Va.  683;  Riddle  v.  McGinnis,  22  W.  Va. 
253;  Smith  r.  Brown.  44  W.  Va.  342,  30  S.  E.  160. 

35.  Leffingwell  v.  Warren,  2  Black  (U.  S.)  599;  Sharon  v.  Tucker, 
144  U.   S.   :»44. 


408  LIMITATION  Of  ACTIONS  §    222 

proved  under  the  general  issue.  *  *  *  The  same  reason 
does  not  apply  to  assumpsit,  because  the  statute  of  limitations 
does  not  destroy  the  right  in  foro  conscientiae  to  the  benefit 
of  assumpsit,  but  only  bars  the  remedy  if  the  defendant  chooses 
to  rely  on  the  bar.  Time  does  not  pay  the  debt,  but  time  may 
vest  right  of  property."  Furthermore,  the  learned  judge  says: 
"This  is  perfectly  true  in  detinue  for  a  slave  because  in  such 
a  case  the  lapse  of  time  has  divested  the  plaintiff  of  his  right 
of  property  and  vested  it  in  the  defendant.  *  *  *  But  it 
is  not  so  in  debt,  because  the  statute  of  limitations  does  not 
destroy  nor  pay  the  debt. 

"A  debt  barred  by  time  is  a  sufficient  consideration  for  a 
new  assumpsit.  The  statute  of  limitations  only  disqualifies  the 
plaintiff  to  recover  a  debt  by  suit  if  the  defendant  rely  on 
time  in  his  plea.  It  is  a  personal  privilege  accorded  by  law  for 
reasons  of  public  expediency  and  the  privilege  can  only  be 
asserted  by  a  plea."36 

(4)  By  instructions.  When  a  defendant  has  had  no  oppor- 
tunity to  plead  the  statute,  as  where  under  §  2717  of  the  Vir- 
ginia Code  in  unlawful  detainer  the  only  plea  allowed  is  not 
guilty,  and  under  the  Virginia  Code,  §  3299,  where  the  only 
replication  is  a  general  replication  (see  §  3300),  the  statute  of 
limitations  cannot  be  replied,  but  may  be  relied  on  in  evidence. 

So,  likewise,  set-offs  may  be  formally  pleaded,  or  notice  may 
be  given  of  set-offs  and  a  list  filed.  If  formally  pleaded,  and 
the  statute  of  limitations  is  relied  on  in  answer  to  the  plea, 
it  must  be  specially  replied,  else  it  will  be  deemed  to  have  been 
waived,  but  if  only  a  list  be  filed  there  is  no  pleading  to  reply 
to,  and  the  plaintiff  may  rely  on  the  statute  as  a  bar  to  such 
set-offs  without  pleading  it.  This  is  done  by  simply  asking 
the  court  to  instruct  the  jury  that  if  they  believe  that  more 
than  a  given  time  (the  statutory  period)  had  elapsed  between 
the  time  that  the  set-off  became  due  and  the  filing  thereof, 
then  on  that  question  they  must  find  for  the  plaintiff.  The 
defendant  in  such  case  cannot  claim  that  he  is  taken  by  sur- 
prise by  using  the  defence  of  the  statute  of  limitations  in  this 
manner,  as  the  plaintiff  has  had  no  other  opportunity  of  giving 

36.  Campbell  v.  Holt,  115  U.  S.  624. 


§    222  HOW   DEFENCE  OF   STATUTE   IS    MADE  409 

him  notice  of  his  intention  to  rely  upon  the  statute,  and  a 
correct  instruction  upon  a  point  which  the  evidence  tends  to 
prove  can  never  work  a  surprise  at  law.37 

hi  equity.  In  Virginia,  following  precedent,  it  is  said  that 
the  defence  of  the  statute  of  limitations  cannot  be  raised  by 
a  demurrer  where  the  limitation  is  of  the  remedy  only,  but 
must  be  raised  by  a  plea,  answer,  exceptions  to  report,  or  in 
some  other  manner,38  but  the  rule  is  otherwise  in  West  Vir- 
ginia and  most  of  the  States.39  Where,  however,  the  limitation 
is  of  the  essence  of  the  right,  and  not  merely  of  the  remedy, 
it  must  affirmatively  appear  from  the  bill  that  the  suit  was 
brought  within  the  time  limited  by  the  statute,  else  the  bill 
will  be  bad  on  demurrer.  Here  time  is  of  the  essence  of  the 
right  and  hence  the  defence  may  be  made  by  demurrer.40 

/;/  Code  States.  In  Code  States  the  defence  of  the  statute 
of  limitations  is  generally  allowed  to  be  raised  by  demurrer. 
It  is  said  that  the  right  to  demur  is  well  established  by  authority 
of  precedent,  but  it  is  criticised  as  indefencible  upon  principle. 
It  is  said:  "The  doctrine  of  the  right  under  consideration  is 
this,  then,  that  before  the  demurrer  is  filed,  the  complainant 
states  sufficient  facts;  but,  upon  the  filing  of  the  demurrer, 
questioning  only  the  sufficiency  of  these  facts,  they  at  once 
become  insufficient.  The  error  of  this  doctrine  is  that  it  either 
makes  the  mere  lapse  of  time  vitiate  the  right  asserted,  which 
is  beyond  the  purpose  and  office  of  the  statute,  or  it  makes  the 
demurrer  operate  as  a  defence,  which  is  beyond  the  office  of 
the  demurrer.  If  it  be  said  that  a  cause  of  action,  on  its  face 
subject  to  a  bar  of  the  statute,  is  good  if  the  statute  is  not 
asserted  because  the  statute  is  waived  by  not  asserting  it,  then 
we  have  the  anomaly  of  a  waiver  validating  that  which  is  de- 
fective in  substance."41 

37.  Sexton  v.  Aultman,  92  Va.  20,  22  S.  E.  838. 

38.  Hubble  z:  Poff,  98  Va.  646,  37  S.  E.  277. 

39.  Jackson  v.  Hull,  21  W.  Va.  601;  Thompson  r.  Whittaker,  41  W. 
Va.  574,  23  S.   E.  795;   Xewberger  v.  Wells,   51   W.  Va.   624,  42  S.   E. 
625:  13  Encl.  PL  and  Pr.  201. 

40.  Savings  Bank  v.  Powhatan  Clay  Co.,  102  Va.  274,  46  S.  E.  294. 

41.  Phillips  on  Code  Pleading,  §§  295,  336,  337. 


410  LIMITATION    OF    ACTIONS  §    223 

Matters  of  avoidance.  Matter  in  avoidance  of  the  statute  of 
limitations,  or  forming  an  exception  thereto,  should,  as  a  rule, 
be  specially  pleaded,  or  the  pleadings  (bill  or  declaration)  be 
amended.  It  cannot  be  relied  on  under  a  general  replication.42 

§   223.    Who  may  plead  the  statute. 

Generally  the  statute  is  a  personal  defence  and  can  be  relied 
on  by  the  party  only.  But  in  equity  when  the  court  is  ad- 
ministering the  estate  of  a  decedent  one  creditor  may  set  up 
the  statute  against  the  claims  of  another,43  and  in  sales  to  wind 
up  an  insolvent  partnership,  where  the  partners  are  non-resi- 
dents and  do  not  appear,  and  the  contest  is  wholly  between 
creditors  of  the  firm,  one  creditor  of  the  firm  may  set  up  the 
statute  against  another  ;44  and  in  Virginia  it  has  been  held  that 
in  suits  to  enforce  liens  against  a  Hinng  defendant  one  creditor 
may  set  up  the  statute  against  the  claims  of  another.45  In  the 
case  of  McCartney  v.  Tyrer,  cited  in  the  margin,  the  debtor 
was  dead,  while  in  Callaway  v.  Saunders,  likewise  cited  in  the 
margin,  he  was  living,  and  yet  the  latter  case  is  based  solely 
on  the  former.  The  West  Virginia  court,  with  better  reason 
it  would  seem,  refuses  to  allow  one  creditor  to  set  up  the  act 
against  another  where  the  debtor  is  alive  and  does  not  plead 
the  act.40  In  the  course  of  the  opinion  in  the  case  last  cited,  the 
following  quotation  is  made  from  the  opinion  of  the  court  in 
Lee  v.  Feemster,  21  W.  Va.  108:  "In  Woodyard  v.  Polsley, 
14  W.  Va.  211,  we  held  that  'After  a  man  is  dead,  and  his 
estate  is  distributed  among  his  creditors  in  a  court  of  equity, 
a  creditor  might  rely  on  the  statute  of  limitations  to  defeat 
the  claim  of  another  creditor.'  But  this  is  put  upon  the  prin- 
ciple that  it  is  then  impossible  for  the  debtor  to  plead  the 
statute  of  limitations ;  his  voice  is  hushed ;  the  law  made  it 
the  duty  of  his  personal  representative  to  plead  the  statute  of 
limitations,  and  if  the  personal  representative  did  not  do  it  the 

42.  2   Abbott's  Trial   Brief  on   PI.   1090,   and   cases   cited;    Lewis  v. 
Bacon,  3  Hen.  &  Munf.  89;  Switzer  v.  Noff singer,  82  Va.  518. 

43.  McCartney  v.  Tyrer,  94  Va.  198,  26  S.  E.  419. 

44.  Conrad  v.  Bank,  21  W.  Va.  396,  410,  411. 

45.  Callaway  v.  Saunders,  99  Va.  300,  38  S.   E.  182. 

46.  Welton  v.   Boggs,  45  W.  Va.   620,   624,  32   S.   E.  232. 


§    224  NEW  PROMISE  OR   ACKNOWLEDGMENT  411 

creditors  might  do  so  as  against  each  other.  With  a  living  man 
it  is  altogether  different.  The  law  does  not  compel  him  to 
plead  the  statute  of  limitations.  It  is  a  personal  privilege  that 
he  can  avail  himself  of  or  not,  as  he  pleases." 

The  plea  of  the  statute  by  one  surety  which  is  not  purely  per- 
sonal to  him  inures  to  the  benefit  of  all.47 

Fiduciaries.  It  is  the  duty  of  a  fiduciary  to  set  up  the 
statute  as  a  defence  to  claims  asserted  against  the  person  he 
represents  which  are  barred  by  the  statute  of  limitations  and 
his  failure  to  do  so  will  generally  render  him  liable  for  the 
resulting  loss.  It  is  provided  by  statute  in  Virginia48  that  if 
any  personal  representative,  guardian,  curator  or  committee  shall 
pay  any  debt  the  recovery  of  which  could  be  prevented  by 
reason  of  illegality  of  consideration,  lapse  of  time,  or  otherwise, 
knowing  the  facts  by  which  the  same  could  be  so  prevented, 
no  credit  shall  be  allowed  him  therefor." 

Privies  in  estate.  Privies  in  estate,  such  as  devisees,  vendees, 
and  mortgagees  of  property  have  a  right  to  rely  upon  the 
statute  of  limitations  in  favor  of  those  under  whom  they  claim 
in  order  to  protect  their  property.49 

Strangers.  Generally  a  mere  stranger  to  a  claim  can  neither 
interpose  the  statute  of  limitations  himself  nor  compel  his 
debtor  to  do  so.  Hence  if  there  be  several  creditors  of  a  com- 
mon debtor,  one  of  such  creditors  cannot  interpose  the  statute 
as  a  bar  to  the  claim  of  the  other  nor  compel  the  debtor  to  do 
so  when  all  are  living,  though  the  debtor  be  insolvent.50 

§   224.    New  promise  or  acknowledgment. 

Statutes  of  limitation  generally  provide  for  the  removal  of 
the  bar  of  the  statute  on  promises  to  pay  money  by  a  new 
promise  in  writing  of  the  debtor,  or  an  acknowledgment  from 
which  a  promise  to  pay  will  be  implied.  The  Virginia  statute 

47.  Ashby  v.  Bell,  80  Va.  811. 

48.  Code.  §  2676. 

49.  McLaugherty  v.   Croft,   43   W.   Va.   270,   27   S.    E.   246;   Blair  v. 
Carter,  78  Va.  621. 

50.  Welton  r.  Boggs,  45  W.  Va.  620,  32  S.  E.  232.    But  see  McCart- 
ney v.  Tyrer,  and  Callaway  v.  Saunders,  ante,  notes  43,  45. 


412  LIMITATION    Of   ACTIONS  §    224- 

is  given  in  the  margin.51  The  antecedent  debt  as  a  general 
rule,  furnishes  all  the  consideration  necessary  for  the  new 
promise. 

Effect  of  new  promise.  The  effect  of  the  new  promise  or 
acknowledgment  is  not  to  stop  the  running  of  the  statute  on  the 
old  promise,  but  to  fix  a  new  period  from  which  the  statute 
will  begin  to  run  on  the  old  promise,  and,  unless  the  new 
promise  amounts  to  a  novation  of  the  debt,  the  limitation  on  the 
new  promise  will  be  the  same  as  on  the  old  in  the  absence  of 
language  in  the  statute  showing  a  different  intent.52 

Furthermore,  a  new  promise  to  pay  a  debt  secured  by  a 
mortgage  or  other  lien  will  keep  alive  the  lien,  but  whether 
the  giving  of  a  security  for  a  debt  will  revive  the  personal 
liability  of  the  debtor  is  the  subject  of  much  conflict.53  A  part 
payment  of  the  principal  or  payment  of  interest  does  not,  at 
least  in  Virginia,  remove  the  bar  of  the  statute.54 

If  the  new  promise  is  limited  to  a  part  of  the  debt  or  a  new 
security  is  given  to  pay  the  debt,  or  so  much  thereof  as  the 

51.  §  2922.     Limitation  of  Action    When  There  Is  a  New  Promise 
in  Writing.     How  Plaintiff    to    Sue    in    Such  Case. — If    any    person 
against  whom  the  right  shall  have  so  accrued  on  an  award,  or  any 
such  contract,  shall,  by  writing  signed  by  him  or  his  agent,  promise 
payment  of  money  on  such  award  or  contract,  the  person  to  whom  the 
right  shall   have,  so  accrued  may  maintain  an  action  for  the  money 
so  promised,  within  such  number  of  years  after  such  promise,  as  it 
might  be  maintained  under  §  2920,  if  such  promise  were  the  original 
cause  of  action.     The  plaintiff  may   sue   on  such  promise   or  on  the 
original  cause  of  action,  except  that  where  the  promise  is  of  such  a 
nature  as  to  merge  the  original  cause  of  action,  then  the  action  shall 
be  only  on  the  promise.     If  the  action  be  on  the  original  cause  of 
action,  in  answer  to  a  plea  under  §  2920,  the  plaintiff  shall  be  allowed 
without  pleading  it,  to  show  such  promise  in  evidence,  to  repel  the 
bar  of  the  plea,  provided  he  shall  have  given  the  defendant  reasonable 
notice,  before  the  trial,  of  his  intention  to  rely  on  such  promise.     An 
acknowledgment  in  writing,   as   aforesaid,   from  which  a  promise  of 
payment  may  be  implied,  shall  be  deemed  to  be  such  promise  in  the 
meaning  of  this  section." 

52.  Copeland  v.  Collins,  122  N.  C.  619,  30  S.  E.  315;  Tole's  Appeal, 
54  Conn.  521,  9  Atl.  402. 

53.  19  Am.  &  Eng.  End.  Law  (2nd   Ed.)  289,  303,  and  notes;  Wolf 
v.  Violett,  78  Va.  57;  8  Va.  L.  Reg.  401. 

54.  Cover  v.  Chamberlain,  83  Va.  286,  5  S.  E.  174. 


§    224  NEW   PROMISE  OR  ACKNOWLEDGMENT  413 

security  will  pay,  it  has  been  held  that  this  does  not  revive 
the  whole  debt  in  the  first  instance  nor  any  part  of  it  except 
so  far  as  the  security  -goes  in  the  second,55  but  on  this  point 
the  authorities  are  conflicting.56 

Nature  of  promise  or  acknowledgment.  It  must  in  most 
States  be  in  writing  and  signed  by  the  debtor  or  his  agent,  and 
must  be  an  unconditional  promise  to  pay  money,  or  else  the 
condition  must  have  been  fulfilled.57  The  following  require- 
ments have  been  laid  down  for  an  acknowledgment  to  take  a 
case  out  of  the  statute :  the  acknowledgment  must  be  ( 1 )  con- 
sistent with  a  promise  to  pay,  (2)  must  be  such  that  a  promise 
to  pay  will  naturally  be  implied,  (3)  must  be  unconditional  or 
the  condition  must  have  been  fulfilled,  (4)  must  be  unqualified 
and  unequivocal — hopes,  excuses,  etc.,  are  not  sufficient;  (5) 
must  be  definite  as  to  the  sum  and  the  debt  intended,  (6)  may 
be  before  or  after  the  bar  has  fallen,'  (7)  must  have  necessary 
formalities — writing;  (8)  must  be  (a)  to  the  creditor  or  his 
agent,  (b)  duly  communicated,  (c)  by  the  debtor  or  his  agent.58 
With  some  qualifications  and  differences,  nearly  the  same  re- 
quirements are  stated  in  a  monographic  note,  in  102  Am.  St.  Rep. 
751.  The  amount  must  be  definite.  It  has  been  held  that 
the  new  promise  must  not  be  uncertain,  but  must  acknowledge 
a  fixed  sum  or  balance  which  admits  of  ready  and  certain 
ascertainment.  If  the  balance  has  not  been  agreed,  the  promise 
is  insufficient.  Hence  a  promise  to  pay  "the  agreed  balance  on 
your  judgment"  is  not  sufficient  when  the  amount  of  such  balance 
does  not  appear.59  An  acknowledgment  must  admit  both  a 
liability  and  a  willingness  to  pay.60  Of  course,  if  the  promise 
is  conditional,  the  condition  must  be  complied  with  before  the 
promise  becomes  operative.  It  is  said  that  an  acknowledgment 
that  the  debt  is  unpaid,  accompanied  by  an  expression  of  a  willing- 

55.  Shepherd  v.  Thompson,  122  U.  S.  231. 

56.  19  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  803;  8  Va.  Law  Reg.  401. 

57.  Stansburg  v.  State,  20  W.  Va.  23;  Bell  v.  Crawford,  8  Gran.  110; 
Aylett  v.  Robinson.  9  Leigh  45. 

58.  19  Am.  &  Eng.  Encl.  Law   (2nd  Ed.)  291  ff. 

59.  Quarrier  r.  Quarrier,  31  W.  Va.  310,  15  S.  E.  154. 

60.  Bell  r.   Morrison,  1   Pet.   351;   Sutton  v.   Burriiss,  9   Leigh  381; 
Cover  r.  Chamberlain,  83  Va    286,  5  S.  E.  174. 


414  LIMITATION    OF    ACTIONS  §    224 

ness  to  pay,  but  an  inability,  is  insufficient  to  take  a  case  out 
of  the  statute.61  But  there  are  many  cases  contra.  Where  the 
debtor  said,  "I  cannot  pay  it  now,  as  I-  have  two  members  of 
my  family  now  to  support,"  it  was  held  sufficient  to  take  the 
case  out  of  the  statute.  So  also,  "I  am  sorry  to  inform  you  that 
the  prospect  at  present  is  not  very  pleasing,  as  it  is  utterly 
out  of  my  power  to  pay  anything."  These  and  other  expres- 
sions have  been  held  sufficient,  but  it  is  very  generally  held 
that  a  promise  "to  settle"  is  not  sufficient.62 

A  promise  to  pay  an  unascertained  balance,  or  to  settle  and 
pay  the  balance  found  due,  will  not  stop  the  running  of  the 
statute.63  But  where  there  is  a  promise  to  pay,  not  specifying 
any  amount,  but  the  amount  can  be  made  certain,  extrinsic 
evidence  may  be  received  to  ascertain  the  amount  due.  It  is 
sufficient  if  the  true  amount  is  capable  of  being  made  certain.64 

Under  the  Virginia  statute,  and  under  the  statutes  generally, 
the  promise  must  be  to  pay  money  or  a  debt.  The  statute 
has  no  application  to  torts.  Hence  where  detinue  was  brought 
for  a  breast-pin,  to  a  plea  of  the  statute  of  limitations,  the 
replication  was  filed  that  within  five  years  before  suit  was 
brought  the  defendant  had  acknowledged  the  breast-pin  to  be 
the  property  of  the  plaintiff,  the  replication  was  held  bad  as 
the  statute  did  not  apply  to  such  a  case,  or  provide  such  a  method 
for  divesting  the  defendant  of  his  title  acquired  by  adverse 
possession.  This  was  not  a  promise  to  pay  money,  but  an 
acknowledgment  of  title  of  the  complainant.05 

Undelivered  writing.  An  action  cannot  be  maintained  on  an 
undelivered  writing  or  a  due  bill  found  in  the  supposed  debtor's 
papers  after  his  death.  Such  writing  so  found  is  not  a  suffi- 
cient acknowledgment  to  prevent  the  bar  of  the  statute.66 

61.  19  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  300,  and  cases  cited. 

62.  Monographic  note,  102  Am.  St.  Rep.  770,  et  scq.     See  also  Shep- 
herd v.  Thompson,  122  U.   S.  231;  8  Va.   Law   Reg.   401. 

63.  Liskey  v.   Paul,   100   Va.   764,  42   S.   E.   875;   Aylett  v.   Robinson, 
9  Leigh  45;  Sutton  v.  Burruss,  9  Leigh  381.     See  on  this  subject  post, 
§  225. 

64.  Cole  v.  Martin,  99  Va.  223,  37  S.  E.  907. 

65.  Morris  v.  Lyons,  84  Va.  331,  4  S.  E.  734. 

66.  Cann  v.  Cann,  40  W.  Va.  138,  20  S.  E.  910;  102  Am.  St.  Rep.  75S. 


§  224  NEW  PROMISE  OR  ACKNOWLEDGMENT  415 

Provisions  in  wills.  It  is  expressly  provided  by  statute,  both 
in  Virginia  and  West  Virginia,  that  no  provision  in  the  will 
of  any  testator  devising  his  real  estate  or  any  part  thereof 
subject  to  the  payment  of  his  debts,  or  charging  the  same  there- 
with, shall  prevent  the  statute  from  operating  on  such  debts 
unless  the  contrary  intent  plainly  appears.67 

By  Whom  Promise  Should  Be  Made. 

(1)  By  party.    A  new  promise  should  be  made  by  the  debtor 
or  his  authorized  agent,  and  not  by  his  personal  representative 
or  heir.68    An  insolvent  debtor  may  give  a  new  promise  to  pay 
a  debt  barred  by  the   statute   and  may   secure  the  debt  by   a 
specific  lien.     In  the  absence  of  fraud,  other  creditors   cannot 
object  if  the  case  does  not  come  within  some  provision  of  the 
bankrupt  law.69 

(2)  By  partners  after  dissolution.     Whether  a  new  promise 
or  acknowledgment  by  one  partner  after  dissolution  will  take  a 
case  out  of  the  statute  of  limitations  as  to  the  other  partners 
is   much   controverted.      In   England   it   is   provided  by   statute 
that    it    shall    not    (9    Geo.    IV.,    chap.    14).      In    the    United 
States  there  is  great  conflict.     Many  courts  say  it  will  not  take 
it  out,  viewing  it  virtually  as  a  new  contract.     In  Virginia,  one 
partner  cannot,  by  his  sole  act,  bind  his  copartner  against  his 
consent,  so  as  to  impose  a  new  liability,  or  to  revive  one  barred 
by  the  statute  of  limitations.     Xor  can  his  declarations  or  ad- 
missions be  received  as  the  only  evidence  of  the  existence  of  a 
debt  against  the  partnership.70 

The  new  promise,  when  made,  must  be  to  pay  a  debt;  a 
promise  "to  settle"  with  the  claimant  is  not  sufficient.71 

67.  Va.  Code,  §  2924;  W.  Va.  Code,  §  3503;  Dunn  v.  Remmick,  33 
W.  Va.  476,  10  S.  E.  810;  Johnston  v.  Wilson,  29  Gratt.  821. 

68.  Seig  r.  Accord,  21  Gratt.  365;  Smith  v.  Pattie,  81  Va.  654;  Swit- 
zer  v.  Xoffsinger,  82  Va.  518. 

69.  Robinson  v.  Bass,  100  Va.  190,  40  S.  E!  660. 

70.  Bell   z:   Morrison,   1   Pet.   367;  Woodson  z>.  Wood,   84  Va.  478;: 
Shelton  r.  Cocke,  3  Munf.  191;  Davis  v.  Poland,  92  Va.  225;  Roots  z>- 
Salt  Co.,  27  W.  Va.  483.     See  note  collecting  cases  1   Gr.  Ev.    (16th. 
Ed.)  307. 

71.  Bell  v.  Crawford,  8  Gratt.  110;  Bell  z:  Morrison,  1  Pet.  361. 


416  LIMITATION    OF    ACTIONS  §    224 

(3)  By  personal  representative.  A  personal  representative, 
cannot,  under  the  statutes  of  Virginia  and  West  Virginia,  make 
a  new  promise  which  will  remove  the  bar  of  the  statute  against 
the  debt  of  his  decedent.72  In  Bishop  v.  Harrison,  2  Leigh  532, 
it  was  held  that  an  executor  might  promise  to  pay  a  debt  of 
his  testator  not  already  barred  and  that  it  was  no  devastavit 
for  him  to  do  so,  that  the  estate  would  be  bound  by  the  promise 
and  the  administrator  d.  b.  n.  might  be  sued  therefor.  After 
that,  what  is  now  §  2923  of  the  Code  of  Virginia  was  enacted, 
declaring  that  no  acknowledgment  or  promise  by  any  personal 
representative  of  a  decedent  should  charge  the  estate  of  such 
decedent  in  any  case  where,  but  for  such  acknowledgment  or 
promise,  the  decedent's  estate  could  have  been  protected  under 
the  statute  of  limitations.  After  the  passage  of  this  statute 
the  case  of  Bishop  v.  Harrison  was  cited  with  approval  in 
Braxton  v.  Harrison,  11  Gratt.  57,  in  Smith  v.  Pattie,  81  Va. 
665  and  Switzer  v.  Noffsinger,  82  Va.  524,  525,  but  the  question 
decided  in  Bishop  v.  Harrison,  was  not  involved  in  any  of  the 
cases  citing  it.  'The  question  of  the  effect,  however,  of  §  2923 
or  its  equivalent  in  West  Virginia  did  come  under  review 
in  Findley  v.  Cunningham,  supra,  where  it  was  held  that  the 
promise  of  the  representative  did  not  bind  the  estate  of  the 
decedent.  The  court,  however,  stood  three  to  two.  The  ma- 
jority opinion  seems  to  be  right.  The  language  of  §  2923 
seems  to  prevent  the  personal  representative  from  making  any 
promise  or  acknowledgment  that  will  remove  the  bar  or  prevent 
the  operation  of  the  statute  from  affecting  the  debt,  and  such 
seems  to  have  been  the  intention  of  the  revisors  of  1849.73 

To  whom  promise  should  be  made.  Under  the  English  rule, 
such  a  promise  to  a  third  person  is  sufficient,  but  the  weight 
of  American  authority  seems  to  be  that  it  must  be  to  the  cred- 
itor or  his  agent,  or  at  least  for  his  benefit;  and,  in  one  case 
in  Virginia,  an  acknowledgment  made  in  a  deposition  by  which 
the  deponent  was  seeking  credit  for  a  payment  as  against  a 

72.  Stiles  i'.  Laurel  Coal  Co.,  47  W.  Va.  838,  35  S.   E.  986;   Findley 
v.  Cunningham,  53  W.  Va.  1,  44  S.  E.  472;  Van  Winkle  v.  Blackford, 
33  W.  Va.  573,  11   S.  E.  26;   Smith  v.  Pattie,  81  Va.  654. 

73.  See   Report  of  Revisors,   Chap.   149,   §  8,  p.  744. 


§    225  WAIVER   AND   ESTOPPEL  417 

deceased  partner,  the  acknowledgment  was  held  to  be  sufficient 
as  a  new  promise  to  pay  that  debt.74 

When  new  promise  should  be  made.  If  made  before  action 
brought,  it  is  immaterial  whether  it  was  made  before  or  after 
the  bar  had  fallen.75  It  would  seem  to  be  too  late  after  the 
institution  of  action.76 

§   225.    Waiver  and  estoppel. 

In  a  monographic  note  in  95  Am.  St.  Rep.  411,  it  is  said: 
"Notwithstanding  some  conflict  in  the  authorities,  the  great 
weight  of  legal  adjudication  and  the  universal  trend  of  modern 
cases  firmly  establish  the  rule  that  an  agreement  or  promise, 
whether  oral  or  written,  by  the  debtor  not  to  plead  the  statute 
of  limitations,  made  before  the  expiration  of  the  statutory 
period,  and  relied  upon  by  the  creditor,  until  after  the  statutory 
period  has  expired,  operates  as  an  estoppel  in  pats  as  against 
the  debtor,  and  precludes  him  from  interposing  the  defence  of 
the  statute  to  defeat  the  action."  In  a  qualified  sense  this  is 
true.  When  the  creditor  has  relied  upon  the  assurance  of  the 
debtor  that  he  would  not  plead  the  statute  of  limitations  to 
such  an  extent  that  to  permit  the  interposition  of  the  defence 
would  be  unconscientious,  inequitable,  and  unjust,  and  would 
operate  a  fraud  upon  the  creditor,  then  the  courts  generally  hold 
that  the  debtor  will  be  estopped  to  set  up  the  defence,  and  so 
where  by  fraudulent  representations  the  debtor  has  misled 
the  creditor  and  caused  him  to  delay  instituting  his  action, 
and  in  some  cases  where  the  debtor  has  fraudulently  concealed 
from  the  creditor  the  existence  of  a  cause  of  action  against 
him,  the  courts  generally  hold  that  the  debtor  will  be  estopped 
to  make  the  defence  of  the  statute.  One  of  the  most  common 
cases  arising  is  that  where  a  defendant  induces  the  plaintiff 
not  to  sue  by  assurances  that  he  will  settle  his  liability  without 
suit,  and  lulls  the  plaintiff  into  inaction  until  after  the  claim 
is  barred.  The  case  of  Ches.  &  Nashville  R.  Co.  v.  Speak- 

74.  Note,  102  Am.   St.   Rep.  754,  756  ff;   Diuguid  v.  Schoolfield,   32 
Gratt.  803,  809,  810;  1  Va.  Law    Reg.  782. 

75.  Shepherd  v.  Thompson,  122  U.  S.  231. 

76.  19  Am.  &  Eng.   End.  Law   (2nd  Ed.)   318,  319. 
—27 


418  LIMITATION    OF   ACTIONS  §    225 

man77  is  simply  typical  of  this  class  of  cases.  There  the 
railroad  company  induced  an  employee  to  refrain  from  suing 
for  injuries  by  promising  to  retain  him  on  its  pay-roll,  pay  him 
for  his  injuries  and  give  him  a  life  job,  which  promise  it  ful- 
filled until  after  the  period  of  limitation  had  expired,  and  it 
then  discharged  him  and  refused  to  pay  for  the  injuries  re- 
ceived. In  an  action  against  the  company,  the  latter  set  up 
the  defence  of  the  statute  of  limitations,  but  it  was  held  that 
the  company  was  estopped  to  plead  the  statute.  When  the 
estoppel  is  of  this  nature,  it  may  be  by  words  or  conduct,  and 
if  by  words,  they  may  be  oral  or  written.  It  is  the  common 
case  of  estoppel  by  conduct.  The  defendant  having  induced  the 
plaintiff  to  change  his  position  for  the  worse  by  the  representa- 
tion that  he  would  not  plead  the  statute,  is  not  thereafter  al- 
lowed to  set  up  the  statute  against  the  plaintiff's  claim.  As  to 
the  duration  of  this  estoppel,  there  is  some  conflict  of  authority, 
quite  a  number  of  the  cases  holding  that  the  statute  runs  against 
the  agreement  not  to  plead  as  well  as  against  the  original  cause 
of  action,  and  that  the  effect  of  the  agreement  is  simply  to  fix 
a  new  period  from  which  the  statute  will  begin  to  run,  and  this 
would  seem  to  be  a  very  reasonable  conclusion,  where  there 
is  nothing  in  the  language  of  the  agreement  to  indicate  a  differ- 
ent intention. 

If  the  promise  not  to  plead  the  statute  of  limitations  is  not 
made  until  after  the  bar  has  fallen,  then  it  is  held  by  a  number 
of  courts  and  it  would  seem  upon  good  reason,  that  the  promise 
is  without  consideration  and  therefore  not  binding.  In  such 
case  a  creditor  has  not  altered  his  position  to  his  detriment  in 
consequence  of  the  promise,  and  if  the  promise  was  not  en- 
forced he  is  in  no  worse  condition  than  he  was  before  it  was 
made. 

If  the  promise  not  to  plead  the  statute  is  made  contempo- 
raneously with  the  original  agreement  and  is  part  and  parcel 
thereof,  there  is-  no  uniformity  in  the  holdings  of  the  courts  as 
to  what  is  the  result.  Some  courts  hold  flatly  that  such  an 
agreement  is  contrary  to  public  policy  and  void  and  in  con- 
travention of  the  statute  which  requires  a  new  promise  or  an 

77.  114  Ky.  628,  71  S.  W.  633,  63  L.  R.  A.  193. 


§   225  WAIVER  AND  ESTOPPEL  419 

acknowledgment  to  take  a  case  out  of  the  statute  of  limitations 
to  be  in  writing.  Of  course  the  courts  entertaining  this  view 
hold  that  such  a  promise  contained  in  the  original  undertaking 
is  simply  nugatory,  and  if  made  subsequent  to  the  original  un- 
dertaking, under  such  circumstances  as  do  not  amount  to  a 
fraud  on  the  debtor,  it  is  either  of  no  effect  at  all,  or  else  has 
only  the  effect  of  starting  a  new  period  from  which  the  statute 
is  to  be  computed.  On  the  other  hand,  a  number  of  courts 
of  the  highest  respectability  and  noted  for  their  learning,  hold 
that  an  agreement  by  the  debtor,  made  at  any  time  before  the 
debt  is  barred,  not  to  plead  the  statute  of  limitations  is  not  con- 
trary to  public  policy,  is  based  upon  a  valuable  consideration 
and  estops  the  debtor  from  setting  it  up.  While  statutes  of 
limitation,  they  say,  are  essentially  statutes  of  repose,  they  were 
enacted  for  the  benefit  and  repose  of  individuals.  The  enact- 
ments were  dictated  by  public  policy,  but  the  beneficiaries  are 
not  the  public  as  such,  but  individuals.  The  right  to  rely  upon 
the  statute  is  a  privilege  personal  to  the  individual  and  hence 
he  may  waive  it  if  he  chooses.  The  privilege  being  personal, 
generally  no  one  can  plead  the  statute  for  him,  nor  compel  him 
to  plead  it.  He,  however,  may  waive  it  if  he  chooses,  and  one 
of  the  commonest  ways  of  waiving  it  is  by  a  failure  to  plead  it. 
If  he  may  waive  it  by  a  failure  to  plead,  there  is  no  good  reason 
why  he  may  not  waive  it  by  an  agreement  to  that  effect.  If 
the  waiver  is  by  agreement,  then,  like  all  other  contracts,  it 
must  be  supported  by  a  valuable  consideration.  If  made  at  any 
time  before  the  bar  has  fallen,  the  act  of  the  creditor  in  re- 
fraining from  suing  furnishes  all  the  consideration  necessary 
to  support  the  agreement.  The  duration  of  the  waiver  is  to  be 
determined  by  the  language  of  the  agreement.  There  is  no 
reason  why  the  parties  may  not  make  the  waiver  perpetual  if 
they  choose.  The  policy  which  dictated  the  statutes  being  for 
the  benefit  of  individuals  and  not  for  the  public  as  such,  such  an 
agreement  cannot  be  said  to  contravene  any  rule  of  public 
policy.  The  agreement  affects  the  individual  only  and  not  the 
public.  Hence  there  is  no  reason  why  parties  may  not  agree 
not  to  plead  the  statute  at  any  time.  Statutes  enacted  to  secure 
general  objects  of  policy  or  morals  cannot  be  modified  by  the 
agreement  of  parties,  but  where  no  principle  of  public  policy 


420  LIMITATION   OF   ACTIONS  §    225 

is  violated,  the  protection  of  a  statute  enacted  for  the  benefit 
of  parties  may  at  any  time  be  waived  by  the  parties,  and  the 
waiver,  when  made,  is  continuous,  unless  by  its  terms  it  is 
limited  to  a  specified  time.  Covenants  not  to  sue,  or  not  to 
sue  for.  a  limited  time,  or  except  on  given  conditions,  are  up- 
held everywhere,  and  it  is  not  perceived  why  a  like  covenant 
on  the  part  of  the  defendant  or  an  agreement  supported  by  a 
valuable  consideration,  either  to  lengthen  the  running  of  the 
statute,  or  to  suspend  it,  or  to  waive  it  altogether,  may  not  be 
validly  entered  into.  The  waiver  or  estoppel  is  not  a  new 
promise  nor  an  acknowledgment  of  a  debt  from  which  a  new 
promise  may  be  implied,  but  simply  an  abandonment  or  post- 
ponement of.  the  right  to  set  up  the  statute  as  a  defence,  and 
hence  the  plaintiff  must  establish  his  demand  after  the  waiver 
as  well  as  before.  The  authorities  on  the  foregoing  propositions, 
as  hereinbefore  pointed  out,  are  not  altogether  in  harmony,  and 
the  cases  are  too  numerous  to  be  cited  in  this  connection,  but  a 
fair  collection  of  them  may  be  found  in  the  references  given  in 
the  margin.78 

Whether  the  right  to  wafve  the  statute  of  limitations  is  or  is 
not  contrary  to  public  policy  has  not  been  settled  in  Virginia. 
Here,  as  elsewhere,  it  has  been  held  that  a  ''promise  to  settle" 
is  not  sufficient  to  take  the  case  out  of  the  statute  and  in  effect 
does  not  amount  to  a  waiver.79  In  Aylett  v.  Robinson,  9  Leigh 
45,  the  debtor,  when  applied  to  to  settle  his  account,  replied, 
"I  am  too  unwell  to  do  business  now,  but  when  I  am  better, 
I  will  settle  your  account."  This  was  held  not  to  amount  to 
a  promise  to  pay,  nor  an  acknowledgment  of  a  debt.  The 
judges  delivered  seriatim  opinions.  Judge  Tucker,  in  the  course 
of  his  opinion,  in  which,  however,  the  other  judges  did  not  con- 
cur, uses  this  language:  "But  it  is  said,  the  promise  ought  to  be 

78.  Monographic  note,  95   Am.   St.    Rep.   411;   mon.   note,   63   L.   R. 
A.  193;  19  Am.  &  Eng.  End.  Law  (2nd  Ed.)  123ft;  Bridges  v.  Steph- 
ens,   132    Mo.   524,    34   S.    W.   555;    Holman   v.    Omaha,    etc.,    Co.,   117 
Iowa  268;  90  N.  W.  833,  94  Am.  St.  Rep.  293;   Schroeder  v.   Young, 
161  U.  S.  334,  344;   Burton  v.  Stevens,  24  Vt.  131,  58  Am.  Dec.  153; 
State  Trust  Co.  v.  Sheldon,  68  Vt.  259,  35  Atl.  177;  Cecil  v.  Henderson. 
121  N.  C.  244,  28  S.   E.  481. 

79.  Bell  v.  Morrison,  1  Peters  351;   Bell  v.  Crawford,  8  Gratt.  110. 


§    225  WAIVER  AND  ESTOPPEL  421 

sufficient  to  give  a  new  cause  of  action.  And  so  it  is.  The 
balance  not  being  ascertained,  indeed,  nor  the  precise  amount 
known  which  may  be  due,  the  plaintiff  has  only  title  to  nominal 
damages,  unless  he  proves  the  amount  of  his  account,  and  to 
entitle  him  to  recover  at  all,  he  must  show  that  there  is  some 
balance  at  least  in  his  favor.  Suppose  the  defendant  had  ex- 
pressly said,  'As  soon  as  I  am  well  I  will  go  into  a  settlement, 
and  whatever  balance  appears  against  me,  I  will  pay  you.'  Can 
it  be  doubted,  that  after  five  years  from  the  original  contract, 
an  action  would  lie  against  him  or  his  executor,  in  which  the 
balance  might  be  proved  and  recovered?  I  imagine  not.  And 
if  so,  the  promise  in  this  case  gave  a  right  of  action,  for  a 
promise  to  settle,  amounts,  at  the  least,  to  an  engagement  to 
pay  the  balance  when  ascertained.  I  cannot  make  this  matter 
plainer  by  argument." 

In  Sutton  v.  Burruss,  9  Leigh  381,  the  defendant  acknowl- 
edged the  items  of  the  plaintiff's  account  to  be  just,  but  said  he 
had  some  offsets,  and  subsequently  promised  the  plaintiff  that 
he  would  settle  all  their  differences  and  accounts  fairly, 
and  would  not  avail  himself  of  the  act  of  limitations,  and  this 
was  held  not  sufficient  to  warrant  a  verdict  for  the  plaintiff  on 
the  plea  of  the  statute  of  limitations.  In  the  course  of  his  opin- 
ion in  this  case,  however,  Judge  Parker  said :  "The  promise  by 
the  defendant  that  he  would  not,  after  a  fair  settlement,  take 
advantage  of  the  act  of  limitations,  could  only  avail  the  plain- 
tiff ( after  showing  that  such  a  settlement  has  been  made  inter 
partcs]  as  a  justification  to  the  jury  in  implying  a  promise  to 
pay  the  balance,  without  proof  of  an  express  promise.  No  con- 
sideration arises  upon  such  a  promise,  until  the  debt  is  estab- 
lished." From  this  it  might  be  inferred  that  if  the  debt  were  es- 
tablished the  defendant  would  be  bound  by  his  agreement,  but 
none  of  the  judges  dealt  with  the  agreement  as  a  waiver.  Each 
treated  it  in  the  light  of  an  acknowledgment  or  new  promise, 
and  held  it  insufficient  as  such. 

In  Holladay  v.  Littlepage,  2  Munf.  316,  the  debtor  was  about 
to  sail  to  Europe  for  an  extended  visit  (which  in  fact  lasted 
sixteen  years)  and  it  was  agreed  between  him  and  his  creditor 
that  no  action  should  be  brought  on  the  debt  until  his  return. 


422  LIMITATION    OF    ACTIONS  §    225 

The  agreement  was  upheld  as  valid,  and  the  running  of  the  stat- 
ute was  suspended  during  that  period. 

In  Bowles  v.  Elmore,  7  Gratt.  385,  the  maker  of  a  note  be- 
came the  surety  of  the  payee  on  a  bail  bond  in  an  action  of 
detinue  brought  against  him.  The  payee,  in  order  to  indemnify 
the  maker  against  loss  by  reason  of  becoming  his  bail,  delivered 
to  him  the  note.  The  liability  of  the  bail  continued  fifteen  years. 
Action  was  then  brought  on  the  note  by  the  payee  against  the 
maker  and  he  relied  on  the  statute  of  limitations,  but  the  court 
held  that  the  statute  did  not  run  from  the  time  of  the  delivery 
of  the  note  to  the  maker  until  his  liability  as  bail  ceased,  and 
consequently  upon  the  facts  of  that  case,  the  statute  of  limita- 
tions did  not  apply.  There  was  a  valuable  consideration  for 
the  suspension  and  the  decision  was  clearly  right.  It  was  in 
effect  an  agreement  that  the  statute  should  not  run  during  the 
period  that  the  liability  as  bail  continued,  so  that  in  this  case, 
as  in  the  case  of  Holladay  v.  Littlepage,  supra,  the  running  of 
the  statute  was  suspended  by  the  agreement,  express  or  implied, 
of  the  parties.  If  parties  may  make  a  valid  agreement  for  the 
suspension  of  the  statute  for  any  length  of  time  they  choose,  it 
would  seem  that  they  might  abrogate  it  altogether.  But  in 
Liskey  v.  Paul,  100  Va.  764,  42  S.  E.  875,  it  was  held  that  a 
promise  to  settle  and  pay  the  balance  found  due  on  the  settle- 
ment will  not  stop  the  running  of  the  statute  of  limitations  dur- 
ing the  time  such  settlement  is  delayed.  It  was  said  that  it  was 
at  most  only  a  promise  to  pay  an  unascertained  balance,  wjiich 
is  not  sufficient.  The  promise  in  this  case  to  settle  and  to  pay 
the  balance  found  due  would  seem  to  be  in  effect  a  promise  to 
waive  or  not  to  plead  the  statute  of  limitations  against  any  bal- 
ance that  might  be  found  due,  but  the  reasoning  of  the  court, 
and  the  quotation  made  from  Sutton  v.  Burruss,  supra,  leads 
inevitably  to  the  conclusion  that  the  Virginia  court  regards  an 
agreement  to  waive  the  statute  of  limitations  as  contrary  to  pub- 
lic policy  and  therefore  void.  The  substance  of  the  replication 
filed  in  this  case  is  given  in  the  opinion  of  the  court,  and  is  in 
effect. an  estoppel  to  plead  the  statute,  though  it  is  not  pleaded 
as  an  estoppel,  but  as  an  obstruction  to  the  prosecution  of  the 
plaintiff's  claim.  The  court  said  it  was  not  an  obstruction  within 


§   225  WAIVER    AND    ESTOPPEL  423 

the  meaning  of  the  statute  and  hence  was  bad  as  a  replication. 
As  the  facts  were  not  formally  relied  upon  as  an  estoppel,  and 
as  estoppels  are  required  to  be  very  precise,  it  is  possible  that  the 
court  might  have  taken  a  different  view  if  the  facts  had  been  re- 
plied as  estoppel.  But  the  reasoning  of  the  opinion  can  leave 
little  room  for  doubt  that  the  court  regards  an  agreement  not 
to  plead  the  statute  of  limitations  as  in  contravention  of  public 
policy,  and  therefore  bad.  It  is  believed,  however,  that  if  the 
promise  not  to  plead  the  statute  is  such  as  would  operate  a 
fraud  upon  the  plaintiff  to  allow  it  to  be  pleaded,  the  Virginia 
court  will  hold,  with  the  majority  of  other  courts,  that  the  de- 
fendant is  estopped  to  set  it  up. 

Aside,  however,  from  estoppel  on  account  of  fraud,  or  prom- 
ises "to  settle,"  or  "to  settle  and  pay  an  unascertained  balance," 
which  may  not  be  intended  to  operate  as  a  waiver  of  the  stat- 
ute, there  seems  to  be  no  reason  of  public  policy  or  of  other 
kind  why  a  debtor  may  not  in  a  writing  evidencing  a  debt  stipu- 
late that  the  statute  shall  never  run  against  it.  There  is  no  stat- 
ute forbidding  it,  and  no  reason  of  public  policy  which  renders 
the  stipulation  void.  Equally  true,  if  the  agreement  is  supported 
by  a  valuable  consideration,  there  is  no  reason  why  a  debtor  may 
not  at  any  time,  after  the  debt  has  been  contracted,  agree  that 
he  will  not  plead  the  statute.  Such  an  agreement  should  be 
very  clearly  and  distinctly  proved,  and  the  intention  of  the 
debtor  to  waive  the  statute  should  be  very  clearly  manifested, 
but  when  it  has  been  so  proved  and  manifested,  and  the  agree- 
ment is  supported  by  a  valuable  consideration,  there  is  no  reason 
why  it  should  not  be  enforced.  It  is  not  in  contravention  of 
good  morals,  it  is  no  more  burden  upon  the  courts  than  a  re- 
fusal to  plead  the  statute  would  be,  and  there  is  no  reason  of 
public  policy  which  forbids  a  debtor  to  waive  a  statute  enacted 
for  his  benefit  when  to  be  available  he  must  positively  claim  it. 
The  statute  of  limitations  is  not  self-operative.  It  is  a  privi- 
lege extended  to  those  who  choose  to  avail  themselves  of  its 
benefit.  It  is  not  forced  upon  the  debtor.  It  is  a  shield  erected, 
behind  which  the  debtor  may  step,  if  he  chooses  to  seek  protec- 
tion from  his  creditor,  but  behind  which  no  one  as  a  rule,  can 
compel  him  to  step,  and  no  honest  man,  admitting  a  just  lia- 
bility, will  step.  Such  a  statute  can  hardly  be  said  to  render  void 


424  LIMITATION    Of    ACTIONS  §§    226-227 

all  agreements  not  to  plead  it.  The  right  to  plead  it  would  seem, 
therefore,  to  be  a  personal  privilege  which  the  debtor  may  waive 
if  he  chooses,  and  which  he  may  waive  as  well  before  action 
brought  as  after.  He  may  waive  it  for  a  limited  time,  or  for 
all  time.  The  duration  of  the  waiver  will  be  determined  by  the 
facts  of  the  particular  case.  Where  no  question  of  fraud  or  in- 
justice is  involved,  probably  by  the  analogy  to  the  statute  re- 
quiring a  new  promise  or  acknowledgment  to  be  in  writing,  and 
for  like  reasons,  the  waiver  should  be  in  writing,  but  the  right 
to  make  the  waiver  seems  not  to  be  denied  by  any  statute,  nor 
forbidden  by  any  rule  of  public  policy.  As  hereinbefore  pointed 
out,  however,  there  is  much  conflict  of  authority  on  this  subject. 

§   226.    Burden  of  proof. 

In  Virginia  the  burden  of  proof  is  on  the  party  pleading  the 
statute,  but  elsewhere  the  authorities  are  conflicting.80 

§   227.    Appeal  and  error. 

It  is  held  in  some  States  that  the  statute  of  limitations  must 
be  pleaded  in  bar  of  an  appeal  or  writ  of  error,81  but  in  Virginia 
the  practice  is  to  move  to  dismiss  the  appeal  or  writ  of  error  be- 
cause not  granted  within  the  time  prescribed  by  law.82  In  fact 
the  court  is  without  jurisdiction  to  grant  an  appeal  or  writ  of 
error  after  the  expiration  of  the  statutory  period,  and  if  one  is 
inadvertently  granted,  the  court,  upon  discovery  of  the  fact,  will 
dismiss  it  ex  mero  motu. 

80.  Goodell  v.  Gibbons,  91  Va.  608,  1  Va.  Law  Reg.  340,  and  note, 
22  S.  E.  504;  Coles  v.  Martin,  99  Va.  223,  37  S.  E.  907;  Green  v.  Dodge 
(Vt.),  64  Atl.  499;  13  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  771. 

81.  13  Encl.  PI.  and  Pr.  187. 

82.  Bull  v.   Evans,   96  Va.   1,  30  S.   E.  468. 


CHAPTER   XXIX. 
PAYMENT. 

§  3J8.  What  constitutes  payment. 

Voluntary  payments. 
§  229.  Application   of  payments. 
§  830.  Plea  of  payment. 

Form  of  the  Plea. 

Code  states. 

Payment  and   set-off  distinguished. 

§    228.    What  constitutes  payment. 

Payment  in  a  general  sense  is  the  discharge  of  a  pecuniary 
obligation  of  a  debtor  by  the  delivery  of  money,  or  anything  that 
is  accepted  as  such,  to  the  creditor  or  his  agent.  It  generally 
means  the  discharge  of  a  pecuniary  obligation.  It  involves  two 
elements,  the  tender  of  the  amount  due  by  the  debtor  and  its 
acceptance  by  the  creditor.  Payment  can  only  be  made  by  a 
party  who,  or  whose  property,  is  in  some  way  liable  for  the 
debt,  or  by  the  agent  of  such  party,  and  it  must  be  made  to  the 
creditor  or  his  agent.  If  there  is  more  than  one  payee,  payment 
to  any  one  will  discharge  the  entire  debt,  unless  otherwise  stip- 
ulated. One  cannot  make  himself  the  creditor  of  another  by  vol- 
untarily paying  that  other's  debt  without  request  from  him,  but 
the  same  result  is  often  practically  accomplished  indirectly.  The 
manner  in  which  this  is  done  is  clearly  pointed  out  by  the  learned 
Judge  Green,  of  West  Virginia,  as  follows  i1 

"1.  A  stranger  who  pays  the  debt  of  another  without  his  re- 
quest or  authority  cannot  sustain  a  suit  against  the  debtor  un- 
less he  has  ratified  the  act  of  the  stranger  by  promising  to  repay 
him,  or  in  some  other  manner. 

"2.  If  such  payment  by  a  stranger  is  neither  authorized  nor 
ratified  by  the  debtor,  it  will  not  be  held  to  be  a  discharge  of  the 
debt. 

"3.  If  such  payment  by  a  stranger  is  neither  authorized  nor 
ratified  by  the  debtor,  the  stranger  may  sue  the  debtor  at  law  in 

1.  Neely  v.  Jones,  16  W.  Va.  M5. 


426  PAYMENT  §  228 

the  name  of  the  creditor  for  his  own  use;  but  the  debtor  may 
by  pleading  or  relying  on  the  payment  of  the  stranger  ratify  it, 
and  such  ratification  being  the  equivalent  of  a  previous  request, 
the  debt  will  be  thereby  discharged,  and  the  debtor  will  be  liable 
to  be  then  sued  by  the  stranger  for  money  paid  for  him  at  his 
request. 

"4.  A  stranger  who  pays  a  debt  without  the  request  or  au- 
thority of  the  debtor,  when  the  payment  is  not  afterwards  rati- 
fied, may,  if  he  chooses,  bring  a  suit  in  equity  stating  this  fact, 
and  praying  that  if  the  payment  be  not  ratified  by  the  debtor, 
the  debt  may  be  enforced  in  his  favor  as  the  equitable  owner 
thereof,  or,  if  the  payment  be  not  ratified  by  the  debtor,  that  the 
court  will  decree  to  the  stranger  the  repayment  of  the  amount 
so  advanced  by  him  for  the  use  of  the  debtor;  and  the  court 
will  give  the  one  relief  or  the  other  prayed  for. 

"5.  The  stranger,  when  he  pays  the  amount  of  the  debt  to 
the  creditor,  may,  without  the  consent  of  the  debtor,  take  an 
assignment  of  the  debt  and  enforce  it  against  the  debtor;  and  if, 
when  he  pays  the  amount,  it  is  agreed  between  the  creditor  and 
him  that  the  creditor  will  assign  him  the  debt,  though  no  actual 
assignment  be  made,  the  stranger  will  be  regarded  as  the  equi- 
table assignee  of  the  debt,  and  the  transaction  will  be  considered 
equivalent  to  the  purchase  of  the  debt. 

"6.  If  a  sheriff  who  has  had,  or  who  has,  an  execution  in  his 
hands,  pays  the  debt  to  the  creditor,  whether  he  takes  an  as- 
signment of  the  judgment  or  not,  he  will  have  the  same  rights 
and  remedies  against  the  debtor  that  a  mere  stranger  would 
have..  But  quccre :  Does  not  public  policy  forbid  that  such 
sheriff  should  have  the  same  rights  and  remedies  as  against  sub- 
sequent judgment  creditors  who  have  acquired  liens  on  the 
debtor's  lands,  or  against  a  purchaser  of  such  lands  for  valuable 
consideration  without  notice  that  the  sheriff  set  up  such  a  claim?" 

If  the  payment  made  by  a  stranger  is  ratified  by  the  debtor, 
then  of  course  the  debt  is  paid,  and  all  securities  therefor  are 
released.  The  original  debt  is  gone,  but  the  ratification  makes 
the  payment  one  by  request,  and  the  stranger  may  sue  in  as- 
sumpsit  as  for  money  paid  on  request,  but  he  gets  no  benefit  of 
the  securities  (judgment  or  otherwise)  held  by  the  original  cred- 


§    228  WHAT   CONSTITUTES  PAYMENT  427 

itor.  If  the  payment  is  not  ratified,  but  repudiated,  the  stranger, 
under  the  conditions  stated  in  paragraph  (5)  above  mentioned, 
takes  the  place  of  the  original  creditor  and  gets  the  securities 
held  by  him  for  the  original  debt.2  As  between  a  stranger  and 
a  debtor,  a  payment  by  the  stranger  which  is  neither  authorized 
nor  ratified  by  the  debtor  does  not  discharge  the  debt,3  but  as 
between  the  original  creditor  (who  has  received  payment  and  sat- 
isfaction of  his  debt  from  a  stranger)  and  the  debtor,  in  an  action 
by  the  former  against  the  latter,  while  there  is  much  conflict  of  au- 
thority, it  would  seem  that  the  debtor  can  plead  that  the  debt  has 
been  satisfied,  and  thereby  ratify  the  payment.  In  other  words, 
the  creditor  having  received  payment  from  any  source  cannot 
call  on  the  debtor  to  repay  the  debt.4 

"A  third  person  who  is  under  no  obligation  to  pay  the  debt 
of  another  cannot,  without  his  request,  officiously  pay  that 
other's  debt  and  recover  of  the  debtor  the  amount  so  paid,  where 
the  debtor  whose  debt  is  paid  does  not  ratify  the  payment;  and 
the  better  doctrine  seems  to  be  that  though  the  debtor  takes  ad- 
vantage of  the  payment  of  his  debt  by  a  third  person  who  is 
under  no  obligation  to  pay  it  and  who  does  so  without  the  debt- 
or's request,  express  or  implied,  such  third  person  acquires  no 
right  against  the  debtor  for  reimbursement,"5  but  this  difficulty 
is  generally  avoided  in  the  method  hereinbefore  pointed  out. 

Part  payment  of  a  money  demand,  though  accepted  in  full, 
was  not  good  at  common  law,  unless  there  was  a  release  under 
seal,  or  the  evidence  of  the  debt  was  surrendered  for  cancella- 
tion, which  was  said  to  be  equivalent  to  a  seal.  In  the  case  of 
such  part  payment  it  was  said  that  there  was  no  consideration 
for  the  promise  not  to  collect  the  residue  of  the  debt.  So,  also, 
at  common  law,  the  creditor  could  not  compound  or  compromise 
with  a  joint  contractor  or  co-obligor  and  release  him  from  lia- 
bility on  his  contract  without  releasing  the  other  joint  contract- 
ors or  co-obligors.  In  Virginia,  by  statute,  a  part  payment  of 
a  money  demand,  when  accepted  by  the  creditor  in  satisfaction, 

2.  Neely  v.  Jones,  supra. 

3.  Neely  v.  Jones,  supra. 

4.  Crumlish  f.  Central  Land  Co.,  38  W.  Va.  390,  396,  ff,  18  S.  E.  456. 

5.  22  Am.   &   Eng.   Encl.   Law   (3d   Ed.)    537. 


428  PAYMENT  §    228 

is  good  without  any  new  consideration,6  and  a  creditor  is  al- 
lowed to  compound  or  compromise  with  any  joint  contractor  or 
co-obligor  and  release  him  from  all  liability  on  his  contract  or 
obligation,  without  impairing  the  contract  or  obligation  as  to  the 
other  contractors  or  co-obligors,7  but  when  the  compromise  is 
made,  the  contract  or  obligation  is  to  be  credited  with  the  full 
share  of  the  party  released,  except  where  the  compromise  is  with 
a  surety  or  co-surety,  and,  in  that  case,  as  between  the  creditor 
and  the  principal,  the  credit  is  only  for  the  sum  actually  paid 
by  the  compounding  debtor.8 

Payment  in  counterfeit  money  is  no  payment,  but  if  made,  the 
payee  must  use  due  diligence  to  ascertain  the  character  of  the 
money,  and  when  found  to  be  counterfeit  give  notice  thereof 
to  the  payer,  or  else  he  will  be  concluded  by  the  payment.9  A 
payment  to  an  assignor  before  notice  of  the  assignment  is  a  good 
payment,  and  may  be  pleaded  in  bar ;  and  so  likewise  a  payment 
to  a  creditor  before  notice  of  an  execution  against  him  is  good, 
but  it  is  not  good  if  made  after  notice  of  such  execution.10 

A  check  or  draft  is  generally  a  conditional  payment  only,  but 
if  the  money  is  lost  by  failure  to  present  in  due  time  the  loss 
falls  on  the  creditor.  Of  course,  a  check  or  anything  else  may, 
by  agreement  of  the  parties,  be  accepted  as  payment.11 

Bills,  notes,  or  bonds  of  the  debtor  are  generally  conditional 
payments,  or  collateral,  only.  They  are  not  payments  unless  so 
agreed,  and  may  be  returned,  and  an  action  may  be  brought  on 
the  original  cause  of  action.12  If  it  is  agreed  between  the 
parties  that  the  note  of  a  third  person  may  be  taken  for  a  debt, 
and  such  note  is  so  given  and  received,  it  will  be  a  payment  of 
the  debt.18  The  note  of  a  debtor  does  not  operate  as  a  payment 
of  an  antecedent  debt,  unless  so  intended  by  the  parties.  In  the 

6.  Code,  §  2858. 

7.  Code,  §  2856. 

8.  Code,  §  2857. 

9.  Pindall   v.    Northwestern    Bank,    7    Leigh    607;    22    Am.    &    Eng. 
Encl.  Law  (2d  Ed.)  550. 

10.  Code,  §  3601. 

11.  Blair  v.  Wilson,  28  Gratt.  165. 
It.  Benj.  on  Sales,  699  to  701. 

IS.  Dryden   v.   Steven,    19   W.   Va.   1. 


§    228  WHAT  CONSTITUTES  PAYMENT  429 

absence  of  such  intention,  express  or  implied,  the  note  is  treated 
as  a  conditional  payment  merely.  If  the  antecedent  debt  has 
passed  into  judgment,  the  same  rule  applies.  The  new  note  is 
considered  simply  as  a  conditional  satisfaction  of  the  judgment 
and  upon  the  dishonor  of  the  former  the  latter  revives  and  may 
be  enforced  at  law  or  in  equity.  If  the  note,  however,  is  ac- 
cepted in  satisfaction  of  the  judgment,  it  is  presumed,  in  the 
absence  of  evidence  to  the  contrary,  that  it  was  accepted  in  sat- 
isfaction of  the  debt  represented  by  the  judgment.  It  is  not 
essential  that  any  particular  form  of  words  be  used  such  as  "full 
satisfaction"  or  "absolute  payment,"  but  any  language  will  be 
sufficient  which,  under  the  circumstances,  plainly  indicates  the 
satisfaction  of  the  debt.14  Whilst  the  mere  taking  of  a  negoti- 
able security,  payable  at  a  future  day,  does  not,  unless  so  agreed, 
operate  as  a  payment  of  an  antecedent  debt,  it  does  operate  to 
suspend  the  right  of  action  on  the  original  demand  until  the  ma- 
turity of  the  bill  or  note.  It  is  a  conditional  satisfaction  as  to 
the  principal,  and  as  to  the  surety  it  is  absolute  unless  it  plainly 
appears  that  the  parties  intended  otherwise.16  But  if  the  note 
be  that  of  a  third  person,  the  taking  of  such  new  note  and  the 
surrender  of  the  old  will  be  treated  prima  fade  as  a  discharge 
of  the  old  note  and  the  release  of  the  maker  from  personal  li- 
ability, and  if  the  old  note  was  secured  by  a  lien  on  land,  the  pay- 
ment of  which  such  third  person  has  assumed,  the  lien  on  the 
land  will  not  be  released  although  the  original  debtor  be  dis- 
charged.1* 

It  is  said  that  a  sale  for  cash  cannot  be  settled  by  a  set-off 
against  the  vendor;17  but  on  this  point  there  is  conflict  of  au- 
thority. Payment  by  mail  or  in  any  other  indirect  way,  unless 
authorized  expressly  or  impliedly,  is  at  the  risk  of  the  payer. 

Voluntary  Payments. — The  mere  fact  that  at  the  time  of  pay- 
ment a  protest  is  entered  and  notice  given  of  intention  to  sue  to 
recover  the  money  back  is  unavailing.  In  order  to  render  the 

14.  Morris  v.   Harveys,   75   Va.   726. 

15.  Callaway  v.  Price,  32  Gratt.  1. 

16.  Hess  v.  Still,  23  W.  Va.  90.     See,  as  to  what  constitutes  a  nova- 
tion of  a  debt,   Beantz  v.  Basnett,  12  W.  Va.  772. 

17.  Benj.  on  Sales,  702. 


430  PAYMENT  §    229 

payment  compulsory  so  as  to  allow  a  suit  to  recover  it  back, 
the  compulsion  must  have  been  illegal,  unjust  or  oppressive,  and 
usually  the  payment  must  have  been  made  to  emancipate  the  per- 
sonal property  of  the  payor  from  a  duress  illegally  imposed  upon 
it  by  the  party  to  whom  the  money  is  paid,  or  to  prevent  a  seizure 
by  a  party  armed  with  apparent  authority  to  seize  the  property.17* 
Payments  are  generally  presumed  to  have  been  voluntary.18  If 
there  is  in  fact,  illegal  compulsion  formal  protest  is  unnecessary. 

§    229.    Application  of  payments. 

When  a  debtor  makes  a  payment  he  may  direct  its  application 
as  he  sees  fit.  If  he  fails  to  exercise  the  right  the  creditor  may 
then  make  the  application,  and  if  neither  makes  the  application, 
it  becomes  the  duty  of  the  court  to  so  apply  the  payment  as  a 
sound  discretion  under  the  circumstances  may  dictate,  and  in  the 
exercise  of  this  discretion  the  interests  of  the  debtor  and  cred- 
itor are  alone  to  be  considered.  Even  sureties  have  no  advan- 
tage in  this  particular.  Where  the  creditor  had  two  claims 
against  the  debtor,  the  one  secured  and  the  other  not,  and  a 
payment  has  been  made  which  neither  the  debtor  nor  the  creditor 
has  applied,  and  the  court  is  called  upon  in  the  exercise  of  its 
discretion  to  make  the  application,  and  there  is  no  other  fact 
or  circumstance  upon  which  the  court  can  lay  hold  to  guide  and 
direct  its  discretion,  the  payment  will  be  appropriated  to  that 
debt  which  is  least  secured,19  that  is,  in  the  interest  of  the  cred- 
itor. It  is  said  that  this  is  no  hardship  on  the  debtor  as  he  owes 
both  debts,  and  ought  to  pay  both.  Many  courts,  however,  fol- 
low the  rule  of  the  civil  law  and  apply  the  payments  in  accord- 
ance with  the  presumed  intention  of  the  debtor,  that  is,  in  the 
way  most  beneficial  to  him.  Others  following,  it  is  said,  a  strict 

17a.  Va.  Brewing  Co.  v.  Com.,  113  Va.  145,  73  S.  E.  454. 

18.  22  Am.  &  Eng.  End.  Law  (2nd  Ed.)  613;  Phoebus  v.  Manhattan 
Club,  105  Va.  144,  52  S.  E.  839. 

19.  Pope  v.  Transparent  Ice  Co.,  91  Va.  79,  20  S.   E.  940;   Sipe  v. 
Taylor,  106  Va.  213,  55   S.   E.  542.     In   Magarity  v.  Shipman,  82  Va. 
784,  1  S.  E.  109,  the  secured  debt  was  undisputed,  the  oldest  in  point 
of   time,    and    carried   a   higher   rate    of   interest    than    the    unsecured 
debt,  and  the  payment  was  therefore   credited  by  the  trial   court  to 
the  secured  debt,  and  this  application  was  affirmed  on  appeal. 


§    230  PLEA   OF   PAYMENT  431 

construction  of  the  common  law,  apply  the  payments  as  above 
indicated  in  favor  of  the  creditor.20 

Where  there  is  but  a  single  debt,  upon  which  partial  payments 
have  been  made,  in  those  jurisdictions  which  do  not  allow  inter- 
est upon  interest,  the  interest  should  be  computed  on  the  princi- 
pal debt  up  to  the  date  when  the  partial  payment  or  payments 
equal  or  exceed  the  interest  due.  The  payment  or  payments 
should  then  be  deducted  from  the  aggregate  of  the  principal  and 
interest,  and  thereafter  interest  calculated  only  on  the  remain- 
ing principal.  Where  the  payment  does  not  amount  to  as  much 
as  the  interest,  then  accrued  interest  on  the  first  principal  should 
be  calculated  up  to  the  time  when  the  aggregate  of  the  partial 
payments  equal  or  exceed  the  amount  of  interest  due  when  the 
payment  is  made,  which,  with  the  prior  payments,  equals  or  ex- 
ceeds the  accrued  interest,  and  such  aggregate  of  payments 
should  then  be  deducted  from  the  sum  of  the  original  principal 
and  accrued  interest,  and  the  balance  found  due  will  constitute 
the  new  principal  upon  which  interest  is  to  be  calculated.  The 
principal  can  never  at  any  time  be  larger  than  what  it  was  after 
payments  were  deducted  from  principal  and  accrued  interest  to 
a  given  date.  Where  there  have  been  partial  payments  and  the 
parties  undertake  to  settle  the  amount  due  the  creditor,  it  is 
error  to.  calculate  the  interest  on  the  principal  up  to  the  time  of 
settlement  and  interest  on  the  different  payments  up  to  that  time 
and  subtract  one  from  the  other.21 

If  payments  are  made  on  a  running  or  continuous  account, 
and  no  application  has  been  made  by  either  the  debtor  or  the 
creditor,  the  law  applies  the  payment  to  the  oldest  items  of  the 
account.22 

§  230    Plea  of  payment. 

Payment  is  a  special  plea,  not  amounting  to  the  general  issue, 

20.  2  Am.  &  Enc.  Encl.  Law  (2nd  Ed.)  454-5  and  cases  cited. 

21.  16  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  1036,  and  cases  cited;  Fulz 
7-.  Davis,  26  Gratt.  903;  Peyson  v.  Myers,  138  N.  Y.  599,  32  N.  E.  699; 
Story  v.  Irvington,  13  Pet.  359. 

22.  Smith  v.  Loyd,  11  Leigh  512;  Chapman  v.  Comth.,  25  Gratt.  721; 
Rowan  r.  Chenoneth,  55  W.  Va.  325,  47  S.  E.  80;  Peale  v.  Grossman 
<W.  Va.),  73   S.   E.  46. 


432  PAYMENT  §    230 

and  hence,  as  a  rule,  may  be  specially  pleaded.  In  the  absence 
of  statute,  payment  in  full,  whether  before,  at,  or  after  maturity, 
if  made  before  action  brought,  may  be  shown  under  the  general 
issues  of  nil  debct  and  non  assumpsit.2*  If  the  payment  be 
made  after  action  brought,  it  must  be  specially  pleaded,  as  all 
pleadings  speak  as  of  the  date  of  the  writ.24  If  the  payment 
be  not  in  full,  but  be  a  special  or  partial  payment,  made  before 
action  brought,  it  may  be  shown  under  the  general  issues  of  nil 
debet  and  non  assumpsit.  In  Virginia  payments  and  set-offs  are 
for  many  purposes  put  on  practically  the  same  footing  and  it  is 
provided  that  "in  a  suit  for  any  debt  the  defendant  may,  at  the 
trial,  prove  and  have  allowed  against  any  such  debt  any  pay- 
ment or  set-off  which  is  so  described  in  his  plea,  or  in  an  ac- 
count filed  therewith  as  to  give  the  plaintiff  notice  of  its  nature, 
but  not  otherwise."26  A  like  provision  is  contained  in  the  Code 
of  West  Virginia.26  The  statute  makes  no  exception  as  to  the 
time  at  which  the  payment  is  made,  or  the  amount  thereof.  It 
seems  to  contemplate  a  special  plea,  or  an  account,  in  all  cases; 
the  object  being  to  give  notice  of  the  defence.27  It  has  been 
strongly  urged  that  payment  at  maturity  may  be  shown  under 
nil  debet  and  non  assumpsit,28  but  in  view  of  the  language  of 
the  statute  above  quoted,  and  of  the  construction  put  upon  it  in 
Richmond  City  Railroad  Co.  v.  Johnson,  supra,  it  would  be  un- 
wise to  omit  the  filing  of  a  proper  account  along  with  such  gen- 
eral issues  in  any  case.  Courts  are  not  strict  in  requiring  a  de- 
fendant to  give  the  proper  designation  to  a  counter-claim. 
Where  the  items  of  an  account  filed  with  a  plea  of  payment,  or 
with  a  plea  under  which  payment  may  be  proved,  as  nil  debet, 
are  so  described  as  to  give  the  plaintiff  notice  of  their  character, 
the  defendant  may  show  either  payments  or  set-offs.  If  the  na- 
ture of  the  item  be  distinctly  stated,  the  statute  is  complied  with, 
though  the  item  be  wrongly  denominated.29 

33.  Ante,  §§  73,  93. 

24.  Nichols  v.   Campbell,   10   Gratt.    160. 

85.  Code,   §   3298;   Allen  v.    Hart,    18   Gratt.   722,   734. 

26.  Code,  W.  Va.,  §  3890. 

27.  Richmond  City  Railroad  Co.  v.  Johnson,  90  Va.  775,  20  S.  E.  148. 

28.  5  Va.  Law  Reg.  410;  Green  v.  Douglas  Land  Co.,  12  W.  Va.  508; 
18  Encl.  PI.  &  Pr.  179. 

28.  Langhorne  v.  McGhee,  103  Va.  281,  49  S.  E.  44. 


§    230  PLEA   OF    PAYMENT  433 

In  West  Virginia  it  seems  to  be  held  that  payment  in  full  be- 
fore action  brought  may  be  shown  under  the  general  issues  of  nil 
debet  and  non  assumpsit  without  any  account  of  payments,  but 
if  specific  or  partial  payments  are  relied  on,  they  must  be  speci- 
fied in  an  account  of  payments.30 

Upon  a  plea  of  part  payment  and  no  answer  as  to  the  residue, 
the  plaintiff  should  take  judgment  by  nil  didt  as  to  the  part  not 
answered,  as  prescribed  by  the  statute,31  else  his  whole  case  will 
be  discontinued,  that  is,  dismissed. 

Upon  an  issue  made  upon  a  plea  of  payment,  if  that  be  the 
only  issue,  the  defendant  has  the  right  to  open  and  conclude.32 

At  common  law,  when  a  bond  was  conditioned  for  the  pay- 
ment of  money  on  a  certain  day,  it  could  not  be  discharged  by 
payment  after  that  day.  Payment  after  the  day  set  for  payment 
would  be  pleaded  as  accord  and  satisfaction  and  not  as  pay- 
ment, but  this  has  been  changed  by  statute  in  Virginia,  enacting 
that,  "In  an  action  of  debt  the  defendant  may  plead  payment 
of  the  debt  (or  of  so  much  as  may  be  due  by  the  condition) 
before  action  brought."33 

Form  of  the  Plea. — It  was  held  in  an  early  case  in  Virginia 
that  the  plea  of  payment  should  conclude  to  the  country,  and  not 
with  a  verification,34  but  in  a  later  case  it  is  held  that  a  verifi- 
cation is  a  proper  conclusion  of  the  plea,  and  such  is  its  form 
at  present.  The  ground  of  the  former  holding  was  that  the  plea 
of  payment  was  a  denial  of  the  allegation  of  non-payment  in  the 
declaration  which  the  plaintiff  was  required  to  make,  and  West 
Virginia  still  adheres  to  that  form  of  plea.35  Notwithstanding, 
however,  the  form  of  the  conclusion  of  the  plea  in  West  Vir- 
ginia, the  burden  of  proof  of  the  payment  is  on  the  defendant 
in  that  state  as  well  as  in  Virginia.36 

30.  Shanklin  v.  Crisamofe,  4  W.  Va.  134;  Simmons  v.  Trumbo,  9  W. 
Va.  358;  Lawson  v.  Zinn,  48  W.  Va.  312,  315,  37  S.  E.  612. 

31.  Code,  §  3302. 

32.  16  End.  PI.  &  Pr.  170. 

33.  Code,  §  3295. 

34.  Henderson  v.   Southall,  4   Call  371. 

35.  Douglass  v.  Central  Land  Co.,  12  W.  Va.  502;  Bank  v.  Kimber- 
lands,  16  W.  Va.  555;  Kinsley  v.  County  Court,  31  W.  Va.  464,  7  S 
E.  445. 

36.  Douglas  v.  Central  Land  Co.,  supra. 
—28 


434  PAYMENT  §    230 

Code  States. — Whether  payment  must  be  specially  pleaded  or 
may  be  shown  under  a  general  denial  in  the  Code  States  is  a 
subject  upon  which  the  authorities  are  in  conflict.  In  many 
cases  it  is  presented  under  the  general  denial,  while  in  others  it 
is  said  it  must  be  specially  pleaded.37 

Payment  and  Set-off  Distinguished. — A  distinction  is  made 
between  a  payment  and  a  set-off.  A  payment  is  by  consent  of 
parties,  express  or  implied,  appropriated  to  the  discharge  of  the 
debt  in  whole  or  in  part.  When  sued  for  the  debt  the  defend- 
ant must  establish  his  payment,  if  any,  for  if  judgment  is  al- 
lowed to  go  for.  the  full  amount  of  the  debt  it  is  conclusive  as  to 
the  amount  due  to  the  plaintiff,  and  all  payments  made  prior  to 
the  date  of  the  judgment  will  be  excluded.  If,  however,  the 
defendant  has  a  set-off,  he  may  either  assert  it  in  the  action 
brought  on  the  debt  due  by  him,  or  he  may  bring  an  independent 
action  therefor.  The  judgment  for  the  debt  due  by  the  defend- 
ant does  not  preclude  him  from  bringing  a  separate  action  for 
his  set-off.38 

87.  Phillips,  §  363. 

38.  Kennedy  v.  Davidson,  46  W.  Va.  433,  33  S.  E.  291. 


CHAPTER  XXX. 

SET-OFFS.* 

§  231.  Definition. 

§  232.  Actions   in    which    available. 

§  233.  Subject  of  set-off. 

Liquidated  demands. 

Availability  of  set-offs. 
§  234.  Acquisition  of  set-offs. 

Set-off  as  between  a  bank  and  general  depositor. 
§  235.  Application   of  set-offs. 
§  236.  Pleading  set-off. 

Manner  of  pleading. 

§    231.    Definition. 

Set-off  is  a  counter  demand  of  a  liquidated  sum  growing  out 
of  a  transaction  extrinsic  to  the  plaintiff's  demand,  for  which 
an  action  on  contract  might  be  maintained  by  the  defendant 
against  the  plaintiff  and  which  is  now  exhibited  by  the  defendant 

*The  following  sections  of  the  Virginia  Code  bear  upon  the  sub- 
ject of  this  chapter: 

Section  3298:  "In  a  suit  for  any  debt,  the  defendant  may  at  the 
trial  prove,  and  have  allowed  against  such  debt,  any  payment  or 
set-off  which  is  so  described  in  his  plea,  or  in  an  account  filed  there- 
with, as  to  give  the  plaintiff  notice  of  its  nature,  but  not  otherwise. 
Although  the  claim  of  the  plaintiff  be  jointly  against  several  persons, 
and  the  set-off  is  of  a  debt  not  to  all  but  only  to  a  part  of  them, 
this  section  shall  extend  to  such  set-off,  if  it  appear  that  the  persons, 
against  whom  such  claim  is,  stand  in  the  relation  of  principal  and 
surety,  and  the  person  entitled  to  the  set-off  is  the  principal." 

Section  3302:  "If  the  defendant  file  a  plea  or  account  of  set-off, 
which  covers  or  applies  to  part  of  the  plaintiff's  demand,  judgment 
may  be  forthwith  rendered  for  the  part  not  controverted,  and  the 
costs  accrued  until  the  filing  of  the  plea  or  account,  and  the  case 
shall  be  proceeded  with  for  the  residue,  as  if  the  part  for  which 
judgment  was  rendered  had  not  been  included  therein.  And  if,  in 
addition  to  such  plea  or  account,  the  defendant  plead  some  other 
plea,  going  to  the  whole  or  residue  of  the  demand,  the  case  shall 
not  be  continued  as  to  the  part  not  controverted  by  the  plea  or 


436  SET-OFFS  §  231 

against  the  plaintiff  for  the  purpose  of  counter-balancing  in 
whole  or  in  part  the  plaintiff's  demand,  and,  where  it  exceeds 
the  plaintiff's  demand,  of  recovering  a  judgment  in  his  own  fa- 
vor for  the  excess.  Set-offs,  as  such,  were  unknown  to  the  coin- 
account  of  set-offs,  unless  good  cause  be  shown  for  such  continu- 
ance." 

Section  3303:  "A  defendant  who  files  a  plea  or  account  under  this 
chapter,  shall  be  deemed  to  have  brought  an  action,  at  the  time  of 
filing  such  plea  or  account,  against  the  plaintiff,  and,  if  he  be  as- 
signee or  transferee,  also  against  the  person  with  whom  the  con- 
tract sued  on  was  originally  made  and  under  whom  the  plaintiff 
claims,  according  to  their  respective  interests,  for  the  matters  men- 
tioned in  such  plea  or  account,  and  the  plaintiff  shall  not,  after  the 
plea  or  account  is  filed,  dismiss  his  case,  without  the  defendant's 
consent,  but  the  defendant's  claim  shall  be  open  to  the  same  ground 
of  defence  to  which  it  would  have  been  open  in  any  action  brought 
by  him  thereon." 

Section  3304.  OTHER  PROCEEDINGS:  "Other  proceedings  shall  be  as 
follows:  First,  If  plaintiff  is  the  person,  or,  etc.,  zvith  whom  the  contract 
was  made,  how  set-off  applied  and  judgment  given. 

"If  the  plaintiff  be  a  person  with  whom  the  contract  sued  on  was 
originally  made,  or  the  personal  representative  of  such  person,  on 
the  trial  of  the  case,  the  jury  shall  ascertain  the  amount  to  which 
the  defendant  is  entitled,  and  apply  it  as  a  set-off  against  the  plain- 
tiff's demand,  and,  if  the  said  amount  be  more  than  the  plaintiff 
is  entitled  to,  shall  ascertain  the  excess,  and  fix  the  time  from  which 
interest  is  to  be  computed  on  the  same,  or  any  part  thereof.  Judg- 
ment, in  such  case,  shall  be  for  the  defendant  against  the  plaintiff  for 
said  excess,  with  such  interest  from  the  said  time  till  payment. 

"Second,  If  he  is  assignee  of  such  person,  and  defendant's  claim  ex- 
ceeds plaintiff's  demand,  defendant  may  -waive  for  the  excess. 

"If  the  plaintiff  claims  as  assignee  or  transferee  under  a  person 
with  whom  the  contract  sued  on  was  originally  made,  and  the  de- 
fendant's claim  exceeds  the  plaintiff's  demand,  the  defendant,  in  his 
plea  or  in  a  writing  filed  with  his  account,  may  waive  the  benefit 
of  his  claim  as  to  any  excess  beyond  the  plaintiff's  claim,  whereupon, 
the  further  proceedings  shall  be  upon  the  plaintiff's  claim  and  the 
defendant's  counter  claim  as  a  defence  thereto;  or,  instead  of  such 
waiver. 

"Third,  He  may  have  person  under  ivhom  plaintiff  claims  made  a  party, 
and  obtain  judgment  against  him  for  such  excess. 

"Such  defendant  may,  by  rule  issued  by  the  court,  or,  on  his  ap- 
plication, issued  by  the  clerk  of  the  court  in  vacation,  or  by  reason- 
able notice  in  writing,  such  rule  or  notice  substantially  stating  the 


§    232  ACTIONS   IN    WHICH    AVAILABLE  437 

mon  law.  They  were  mere  cross  demands,  and  required  a  sep- 
arate and  independent  action.  So  far  as  the  right  to  assert  them 
at  law  exists,  it  is  entirely  by  virtue  of  statute.1  At  common 
law  if  A  and  B  mutually  owe  each  other  $1000,  the  demands 
cannot  be  set  off  against  each  other,  but  the  rule  is  otherwise  by 
statute.2 

§    232.    Actions  in  which  available. 

The  language  of  the  Virginia  Act3  is  that  "in  a  suit  for  any 
debt"  the  defendant  may  prove  and  have  allowed  the  set-off 
described  in  that  section,  and  such  is  the  language  of  a  large 
number,  if  not  of  the  majority,  of  the  statutes  on  the  subject. 
As  will  be  seen  later,  a  set-off  must  be  a  debt,  or  at  least  in  the 
nature  of  a  debt,  and  that  against  which  it  is  to  be  set  off  must 
likewise  be  a  debt.  It  must  be  a  debt  against  a  debt.  It  is 
immaterial  what  the  form  of  the  action  may  be,  whether  Debt, 
Covenant,  Assumpsit,  or  Motion,  if  the  thing  proceeded  for  is  a 
debt,  then  set-off  may  be  allowed  against  it.  The  action  must, 
•as  a  rule,  be  upon  some  demand  which  might  itself  be  used  as  a 
set-off.  Set-offs  cannot  be  used  in  purely  tort  actions.  In 
some  cases  arising  out  of  tort,  the  plaintiff  has  a  right  to  waive 
the  tort  and  sue  in  contract.  If  he  sues  in  tort,  no  set-offs  can 
be  allowed  against  it.  If  he  waives  the  tort  and  sues  upon  the 
implied  contract,  the  authorities  are  in  conflict  as  to  whether 
or  not  set-offs  can  be  set  up  against  the  plaintiff's  demand.4  It 
would  seem  in  Virginia  that  the  set-off  would  be  available.5 

defendant's  claim,  make  the  person,  under  whom  the  plaintiff  claims 
as  aforesaid,  a  party  to  the  suit;  and,  on  the  trial  of  the  case,,  the 
jury  shall  ascertain  and  apply,  as  provided  in  the  first  sub-division 
of  this  section,  the  amount  and  interest  to  which  the  defendant  is 
entitled;  and,  for  any  excess  beyond  the  plaintiff's  demand  for  which 
such  person  under  whom  the  plaintiff  claims  as  aforesaid  is  liable, 
with  such  interest  as  the  jury  allows,  judgment  shall  be  rendered  for 
the  defendant  against  such  person." 

1.  34  Cyc.  625;  25  Am.  &  Eng.  Encl.  Law   (2nd  Ed.)  488. 
*.  Code,  §  3298. 

3.  Code,  §  3298,  supra. 

4.  25   Am.   &   Eng.   Encl.   Law    (2nd   Ed.)    508. 

5.  Tidewater  Quarry  Co.  r.  Scott,  105  Va.  160,  52  S.  E.  835. 


438  SST-OFFS  §  233 

§    233.    Subject  of  set-off. 

It  is  generally  held  under  statutes  similar  tc  the  Virginia 
statute  that  that  which  is  the  subject  of  set-off  must  be  a  liqui- 
dated demand,  a  debt  against  a  debt.6  It  seems  to  be  well  set- 
tled that  unliquidated  demands  cannot  be  used  as  set-offs,  but 
that  the  demand  must  be  liquidated. 

Liquidated  Demands.  It  is  said  that  "the  cases  defining  what 
is  a  liquidated  demand  within  the  meaning  of  statutes  of  set-off 
are  very  confusing  and  unsatisfactory  and  vary  according  to  the 
disposition  of  the  various  courts  to  extend  or  restrict  the  right 
of  set-off  and  the  wording  of  the  statute."7  An  examination  of 
the  cases  in  the  various  states  on  this  subject  fully  confirms  the 
foregoing  statement.  It  has  been  held  in  Virginia  that  property 
unlawfully  converted  to  the  use  of  another  may  be  treated  as  a 
sale,  and  the  price  or  value  thereof  may  be  set  off  against  a  liqui- 
dated demand.8  There  are  several  other  states  that  take  a  simi- 
lar view.  They  generally  lay  down  the  rule  that  unliquidated 
damages  to  be  assessed  upon  pecuniary  demands,  as  for  goods 
sold  and  delivered,  work  done,  and  demands  in  all  cases  where 
debt  or  indebitatus  assumpsit  would  lie,  may  be  set  off  ;9  but  the 
rule  stated  in  these  general  terms  would  cover  many  cases  where 
the  demand  was  far  from  liquidated.  The  cases  taking  this  view 
hold  that  if  the  damages  do  not  lie  in  mere  opinion,  but  can 
be  readily  ascertained  by  calculation  or  computation  they  may 
be  set  off  against  a  liquidated  demand ;  that  the  statute  is  in- 
tended to  lessen  litigation,  and  hence  is  to  be  liberally  construed 
to  further  that  end.  This  is  undoubtedly  true,  and  where  the 
articles,  the  value  of  which  is  sought  to  be  set  off,  are  staple 
and  «their  value  readily  ascertainable,  it  would  seem  a  set-off 
might  be  allowed ;  but  where  the  articles  are  not  of  this  charac- 
ter, and  the  evidence  of  witnesses  as  to  their  value  is  conflicting, 
and  the  value  is  to  be  determined  by  the  jury  from  the  weight 

6.  Bunting  v.  Cochran,  99  Va.  558,  39  S.  E.  229;  Tidewater  Quarry 
Co.  v.  Scott,  105  Va.  160,  52  S.  E.  835;  Case  v.  Sweeney,  47  W.  Va. 
638,  35  S.   E.  853. 

7.  34  Cyc.  693. 

8.  Tidewater   Quarry  Co.  v.   Scott,  supra. 

9.  34  Cyc.  694,  and  cases  cited. 


§    233  SUBJECT  OF  SET-OFF  439 

of  the  evidence,  their  value  should  not  be  allowed  as  set-off.  If 
such  values  so  ascertained  may  be  allowed  as  a  set-off  then  no 
certain  standard  can  be  fixed  to  ascertain  what  is  and  what  is 
not  a  liquidated  demand.  On  the  other  hand,  there  is  a  line  of 
cases  holding  that  damages  resulting  from  breach  of  contract  are 
unliquidated  when  there  is  no  criterion  provided  by  the  parties, 
or  by  the  law,  for  their  ascertainment,  and  that,  in  order  for  a 
claim  to  be  admissible  as  a  set-off,  the  amount  of  it  must  be  as- 
certained either  by  the  contract  of  the  parties,  or  by  the  law, 
or  by  a  mere  mathematical  calculation  on  the  contract  under 
which  the  claim  arises.10  The  Alabama  doctrine  seems  to  com- 
port with  the  language  of  statutes  similar  to  the  Virginia  stat- 
ute. It  is  said,  "not  only  debts,  but  liquidated  and  unliquidated 
demands  not  sounding  in  damages  merely  are  the  subject  of  set- 
off.  A  demand  of  this  nature  is  defined  to  be  one  which,  when 
the  facts  upon  which  it  is  based  are  established,  the  law  is  ca- 
pable of  measuring  accurately  by  a  pecuniary  standard.  If, 
however,  the  law  does  not  fix  the  measure  of  damages,  but  they 
are  committed  to  the  judgment  of  the  jury  and  depend  upon  the 
circumstances  of  the  particular  case,  the  demand  sounds  in 
damages  merely,  and  is  not  available  as  a  set-off."11  It  would 
seem,  on  principle,  that  a  demand  must  appear  from  the  contract 
to  be  certain  or  capable  of  being  rendered  certain  by  calculation 
upon  data  furnished  by  the  contract,  or  by  the  law,  or  the  ar- 
ticles, the  value  of  which  are  sought  to  be  set  up,  must  have  a 
fixed  market  valuej  else  the  demand  is  not  liquidated  and  can- 
not be  brought  forward  as  a  set-off.  If  the  value  of  articles  is 
not  ascertainable  by  any  fixed  standard,  but  lies  in  the  opinion 
of  a  jury  upon  weighing  conflicting  testimony,  it  is  not  admissi- 
ble as  a  set-off.  Of  course,  no  matter  how  unliquidated  a  de- 
mand may  be,  if  parties  agree  upon  its  value,  then  it  has  become 
liquidated  and  may  be  used  as  a  set-off. 

Availability  of  Set-Offs.     In  order  that    the    defendant    may 
avail  himself  of  his  set-offs,  it  is  said  that  the  following  circum- 

10.  25  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  509,  and  cases  cited,  includ- 
ing McCord  v.  Williams,  2  Ala.  71;  Hall  v.  Glidden,  39  Me.  445;  34 
Cyc.  694,  and  cases  cited. 

11.  25  Am.  &  Eng.  Encl.   Law  (2nd  Ed.)   511,  512. 


440  SET-OFFS  §  233 

stances  must  concur:  (1)  As  just  pointed  out,  the  demands 
of  the  plaintiff  and  of  the  defendant  each  must  be  in  the  nature  of 
a  debt,  and  such  that  an  action  at  law  may  be  maintained  thereon, 
but,  if  of  this  nature,  the  claim  may  be  either  legal  or  equi- 
table.12 (2)  The  demands  must  be  due  between  the  same  par- 
ties, and  in  the  same  right.  A  debt  due  from  a  partner  can- 
not be  set  up  against  a  partnership  demand,  nor  vice  versa,  nor 
can  a  debt  due  to  one  as  executor,  administrator,  or  trustee,  be 
set  up  against  one  in  his  own  right,  nor  vice  versa.™  Where 
principal  and  surety,  however,  are  sued  in  the  same  action,  the 
Virginia  statute14  permits  the  principal  to  set  off  against  the 
plaintiff  any  claim  which  he  may  have  against  him,  but  the  same 
privilege  is  not  extended  to  the  surety  of  a  solvent  principal. 
The  surety  may  not,  while  the  principal  is  solvent,  set  off  a  de- 
mand of  his  against  the  plaintiff.15  Where  a  contract  has  been 
made  by  an  agent  of  an  undisclosed  principal  and  a  defendant 
has  dealt  with  such  agent,  supposing  him  to  be  the  sole  principal, 
if  the  action  be  brought  in  the  name  of  the  principal,  the  de- 
fendant has  the  right  to  be  put  in  the  same  position  to  all  in- 
tents and  purposes  as  if  the  agent  were  the  principal,  and  to 
set  off  claims  against  such  agent  acquired  before  knowledge  of 
the  fact  that  he  was  agent.16  (3)  A  set-off  must  be  pleaded,  or 
at  least  a  list  filed  and  notice  thereof  given  to  the  adverse  party. 
(4)  Debts  on  both  sides  must  be  due  and  owing  at  least  at 
the  time  of  the  filing  of  the  set-off.  No  action  could  be  main- 
tained by  the  plaintiff  unless  his  claim  was  due  at  the  time  of 
action  brought,  and  as  the  defendant  is  deemed,  under  the  terms 
of  the  Virginia  statute,  to  have  brought  an  action  at  the  time 
of  the  filing  of  his  plea  or  list,17  of  course  his  set-off  must  be 
due  and  payable  at  the  time  he  pleads  or  files  his  list.  Such, 
undoubtedly,  is  the  rule  at  law,  but  in  equity,  in  cases  of  insol- 

12.  4  Min.  Inst.  787;  Wartman  r.  Yost,  22  Gratt.  605. 

13.  4  Min.   Inst.  788,  789. 

14.  Code,  §  3298. 

15.  Stimmel  v.   Benthal,   108  Va.   141,  60  S.   E.   765;    Edmondson  v. 
Thomasson,  112  Va.  326,  71  S.  E.  536. 

16.  Leterman  v.   Charlottesville  Co.,  110  Va.   769,  67   S.   E.  281;   25 
Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  538,  539. 

17.  Code,  §  3303. 


§   234  ACQUISITION  OF  SET-OFFS  441 

vency  or  when  irreparable  injury  would  be  otherwise  done  a  de- 
fendant, a  debt  not  due  may  be  set  off  against  an,  existing  de- 
mand on  the  ground  of  a  right  of  equitable  retainer.18 

§    234.    Acquisition  of  set-offs. 

As  a  general  rule,  under  the  Virginia  statute,  the  defendant 
may,  after  he  is  sued  and  up  to  the  time  of  filing  his  plea  or 
list,  indeed  up  to  the  time  of  trial,  acquire  set-offs  against  the 
plaintiff,  but  if  they  are  acquired  after  action  is  brought  the 
plaintiff  will  be  entitled  to  a  judgment  for  his  cost  even  though 
the  defendant  should  recover  a  judgment  against  the  plaintiff 
for  the  excess  of  his  set-off  over  the  plaintiff's  demand.19  If 
the  payee  or  other  owner  of  a  non-negotiable  instrument  as- 
signs it  to  another,  the  debtor  may  acquire  offsets  against  the 
assignor  up  to  the  time  that  he  has  notice  of  the  assignment,  but 
not  afterwards.  If,  however,  the  paper  be  negotiable,  though 
transferred  after  maturity,  set-offs  acquired  after  transfer,  even 
without  knowledge  of  the  transfer  will  not  avail  against  the 
holder,  as  the  holder  takes  the  legal  title  discharged  of  such 
equities.20  Indeed  it  has  been  held  that  a  bona  fide  purchaser 
for  value  of  an  overdue  negotiable  instrument  holds  it  subject 
only  to  such  equities  as  attached  to  the  instrument  itself  at  the 
time  of  the  transfer,  not  subject  to  offsets  acquired  before  or 
after,  of  which  he  had  no  notice.21 

The  law  fixes  the  order  in  which  debts  of  a  decedent  shall  be 
paid  out  of  his  estate,  and  if  he  dies  insolvent  this  order  cannot 
be  disturbed,  as  it  would  affect  the  rights  of  other  creditors. 
Upon  this  principle,  if  a  creditor  becomes  bankrupt,  or  has  made 
a  general  assignment  as  an  insolvent,  one  of  his  debtors  cannot 

18.  1  Va.  Law  Reg.  780:   Ford  v.  Thornton,  3  Leigh  695;  Wayland 
r.  Tucker.  4  Gratt.  267;  Williamson  v.  Gayle,  7  Gratt.  152;  Childress 
r.  Jordan.  107  Va.  275,  58  S.   E.  563;   Feazle  v.   Dillard.  5  Leigh  30; 
Va.  Rep.  Ann.,  and  notes. 

19.  Code.  §§  3303.  3304;  Allen  v.  Hart,  18  Gratt.  722.  729. 

20.  Davis  r.  Miller,  14  Gratt.  1;  Davis  v.  Noll,  38  W.  Va.  66.  17  S. 
E.  791.     It  is  not  believed  that  this  question   is  affected  by  §  58   of 
Nego.  Ins.  Act. 

21.  Davis  v.  Noll,  38  W.  Va.  66,  17  S.  E.  791. 


SET-OFFS  §   235 

set  off  claims  bought  up  by  him  for  the  purpose  after  he  had 
notice  of  the  assignment,  as  by  registration  of  the  deed  of  as- 
signment, or  after  adjudication  in  bankruptcy.22 

Set-Off  as  betzveen  a  Bank  and  General  Depositor. — The  re- 
lation existing  between  a  bank  and  its  depositor  is  simply  that 
of  debtor  and  creditor,  and  hence  the  bank  may  acquire  setoffs 
against  the  deposits  of  its  creditor,  and  may  deduct  them  from 
his  account.  By  §  87  of  the  Negotiable  Instruments  Act  it  is 
expressly  provided  that  "where  the  instrument  is  made  payable 
at  a  bank  it  is  equivalent  to  an  order  to  the  bank  to  pay  the 
same  for  the  account  of  the  principal  debtor  thereon."  But  even 
if  not  payable  at  the  bank  which  is  the  holder  thereof,  but  at 
some  other  bank,  the  holder,  upon  dishonor  by  non-payment, 
may,  if  the  primary  debtor  is  one  of  its  customers,  charge  the 
debt  to  his  account.  This  right  results  simply  from  the  relation 
of  the  parties  as  debtor  and  creditor.23 

§    235.    Application  of  set-offs. 

Where  there  is  a  set-off  to  several  bonds  or  other  evidences 
of  debt  which  have  been  assigned  to  different  persons,  the  set- 
off  should  be  applied  to  the  bonds  or  other  evidences  of  debt 
in  the  inverse  order  of  assignment.  This  is  upon  principles  of 
natural  justice.24  Whether  the  plaintiff  can  acquire  counter  set- 
offs  in  whole  or  in  part  against  the  defendant's  set-offs  has  not 
been  adjudged  in  Virginia,  but,  upon  principle,  there  is  no  rea- 
son why  he  may  not  acquire  them,  and  such  has  been  the  prac- 
tice, at  least  in  some  of  the  trial  courts,  and  the  right  seems  to 
have  been  recognized  in  one  case  without  question.25  Section 
3304  of  the  Code  seems  to  be  liberal  in  the  matter  of  adjusting, 
accounts  between  the  parties  and  to  be  in  furtherance  of  ad- 

22.  Bennett  v.   Finney,   27   Gratt.    365;    Edmondson   v.    Thomasson, 
112  Va.  326,  71  S.  E.  536;  State  v.  Brobston,  94  Ga.  95,  21  S.   E.  146, 
47  Am.  St.  Rep.  138,  and  notes. 

23.  Scammon  v.   Kimball,  92  U.  S.  362;   3  Am.   &  Eng.   Encl.   Law 
(2nd  Ed.)  835;  Durkee  v.  National  Bank,  102  Fed.  845;  Ford  v.  Thorn- 
ton, 3  Leigh  695;  Owsley  v.  Bank,  23  Ky.  Law  1726,  66  S.  W.  33. 

24.  Armentrout  v.  Gibbons,  30  Gratt.  632. 

25.  Sexton  v.  Aultman,  92  Va.  20,  21,  22  S.  E.  838. 


§   236  PLEADING   SET-OFF  443 

justing  all  liquidated  demands  between  them.  If  the  plaintiff 
sues  as  assignee  of  another  party,  and  the  defendant's  set-offs 
against  the  assignor  exceed  the  plaintiff's  demand,  he  may  waive 
the  excess  and  simply  rely  upon  his  set-off  to  repel  the  plain- 
tiff's action,  or  the  statute  provides  that  he  may,  by  rule  issued 
by  the  court  or  by  the  clerk  in  vacation,  or  by  reasonable  notice 
in  writing  stating  the  defendant's  claim,  make  the  person  under 
whom  the  plaintiff  claims  a  party  to  the  suit,  and  if  upon  the 
trial  it  shall  be  ascertained  that  there  is  an  excess  in  favor  of 
the  defendant  beyond  the  plaintiff's  demand,  for  which  such  per- 
son under  whom  the  plaintiff  claims  as  aforesaid  is  liable,  the 
defendant  may  have  judgment  against  such  person  for  such 
excess.26 

§    236.    Pleading  set-off. 

The  statute  permits  but  does  not  require  the  defendant's  set- 
off  to  be  pleaded  or  relied  on  in  the  plaintiff's  action.  The  de- 
fendant may  is  the  language  of  the  statute.27  It  is  a  cross 
demand  growing  out  of  an  independent  transaction  for  which 
he  may  maintain  an  independent  action,  but  in  order  to  prevent 
a  multiplicity  of  suits  he  is  allowed  to  set  up  this  claim  in  an 
action  by  the  plaintiff  against  him.  If  he  does  rely  on  a  set-off 
in  the  original  cause  of  action,  he  "shall  be  deemed  to  have 
brought  an  action  at  the  time  of  filing  such  plea  or  account  against 
the  plaintiff,"28  and  of  course  should  have  the  burden  of  prov- 
ing the  same.  If  he  has  several  items  of  set-off,  he  may  assert 
part  of  them  in  the  plaintiff's  action  and  omit  the  others,  but  he 
cannot  claim  part  of  an  entire  demand  in  one  action  to  defeat 
the  plaintiff's  claim,  and  reserve  the  residue  for  cross  action 
against  the  plaintiff.  He  is  deemed  to  have  brought  an  action 
on  his  set-off.  He  could  not  divide  an  entire  demand  and  bring 
separate  actions  for  the  different  parcels,  neither  can  he  assert 
a  part  of  such  entire  demand  as  a  set-off,  and  reserve  the  resi- 
due.29 

86.  Code,  §  3304. 

27.  Code,  §  3298. 

28.  Code,  §  3303. 

29.  Huff  v.  Broyles,  26  Gratt.  285.     See,  also,  Phillips  v.  Portsmouth, 
112  Va.  164,  70  S.  E.  502. 


444  SET-OFFS  §  236 

Manner  of  Pleading.  Set-offs  may  be  specially  pleaded  by 
a  formal  plea  of  set-offs,  or  a  list  may  be  filed  with  some  plea. 
A  mere  list,  however,  without  any  plea,  does  not  conform  to  the 
requirement  of  the  statute.  The  statute  says  a  defendant  may 
have  allowed  any  set-off  "which  is  so  described  in  his  plea  or 
in  an  account  filed  therewith,"  as  to  give  the  plaintiff  notice  of 
its  nature.30  Undoubtedly  the  statute  contemplates  a  plea  of 
some  kind.  It  is  said  by  Prof.  Minor  that  the  defence  may  be 
either  "by  plea  or  by  notice  merely,  which  is  usually  endorsed 
on  the  bond,  note  or  account  evidencing  or  containing  the  par- 
ticulars of  the  cross  demand  stating  that  the  same  will  be  relied 
on  at  the  trial  as  a  set-off.  This  notice  is  usually  and  prudently 
accompanied  by  a  plea  of  general  issue,  nil  debet  or  non  assump- 
sit,  but  that  does  not  appear  to  be  necessary."31  It  is  believed 
that  this  statement  of  Prof.  Minor  accords  with  the  practice, 
but  it  does  not  seem  to  accord  with  the  language  of  the  statute  and 
consequently  is  not  a  safe  course  to  pursue.  It  has  been  held  re- 
cently, however,  in  Virginia,  that  the  "defendant  may  either  plead 
the  set-off,  or  give  notice  of  it  by  filing  an  account  of  set-off" 
but  the  holding  is  obiter  as  to  the  right  of  the  defendant  to  rely 
on  the  list  alone,  as  the  question  arose  in  a  case  where  the  defend- 
ant had  pleaded  nil  debet  and  filed  an  account  with  his  plea,  so 
that  whether  the  account  would  of  itself  have  been  sufficient  with- 
out the  plea  was  not  involved  in  the  case.32  The  defendant  should 
either  file  a  special  plea  of  set-offs,  or  some  other  applicable 
plea,  and  along  with  the  latter  file  his  list  of  set-offs.  Usually 
he  should  give  notice  of  the  filing  of  such  set-offs.  The  general 
issues  of  nil  debet  and  non  assumpsit  would  be  appropriate  pleas 
with  which  to  file  an  account  of  set-offs  where  the  action  is  on 
a  simple  contract.  If,  however,  the  action  is  on  a  sealed  instru- 
ment the  appropriate  plea  would  be  payment.  If  the  defendant 
simply  files  a  list  of  the  set-offs  and  the  plaintiff  wishes  to  rely 
upon  the  fact  that  some  or  all  of  them  are  barred  by  the  act 
of  limitations,  this  defence  would  be  reached  by  an  instruction 
from  the  court  as  there  is  no  plea  to  which  the  plaintiff  can 

30.  Code,  §  3298. 

31.  4  Min.  Ins.  790. 

32.  Sexton  v.  Aultman,  92  Va.  20,  21.  22  S.  E.  838. 


§    236  PLEADING  SET-OFF  445 

reply.33  If,  however,  the  defendant  files  a  formal  plea  of  set- 
off  and  the  plaintiff  wishes  to  rely  on  the  statute  of  limitations, 
he  must  do  so  by  special  replication  of  the  act. 

It  has  been  recently  held  that  a  defendant  in  a  proceeding  by 
motion  under  §  3211,  of  Va.  Code,  may,  under  a  plea  of  non 
assumpsit,  rely  upon  set-offs  though  no  list  is  filed.  This,  how- 
ever is  placed  on  the  informality  of  the  proceeding  by  notice, 
strengthened  by  the  fact  that  the  plaintiff  had  notice  of  the  set- 
off  at  an  early  stage  of  the  proceeding.  But  the  court  said  that 
even  if  there  had  been  no  notice,  the  remedy  of  the  plaintiff  was 
by  motion  for  a  statement  of  the  grounds  of  defence  under  Sec- 
tion 3249  of  the  Code.34  This  last  statement  was  not  necessary 
to  the  decision  of  the  case,  and  certainly  is  not  applicable  to  a 
regular  action  at  law,  even  conceding  its  correctness  as  to  mo- 
tions. 

33.  Sexton  v.  Aultman,  92  Va.  30,  22  S.   E.  838. 

34.  Whitley  v.  Booker  Brick  Co.,  113  Va.  ,  74  S.  E.  160. 


CHAPTER  XXXI. 
RECOUPMENT. 

§  237.  Definition. 

§  238.  Common  law   recoupment. 

§  339.  Virginia   statute  of  recoupment. 

Reinvestment  of  title  to  real  estate. 

Rejection  of  plea  under  statute. 

Action  for  purchase  price  of  personal  property. 

Notice  of  recoupment. 

Essentials  of  a  valid  plea. 

Relief  in  equity. 

Recoupment  and  set-offs  contrasted. 
§  240.  Who  may  rely  upon  the  statute. 

§    237.    Definition. 

The  difference  between  recoupment  and  set-off  has  been  il- 
lustrated by  scales  or  balances.  Ordinarily,  the  balances  will 
stand  even  between  man  and  man,  but  if  a  plaintiff  puts  his 
claim  into  the  balances  against  the  defendant  this  destroys  the 
equilibrium  which  had  previously  existed,  and  the  plaintiff's 
side  of  the  balances  will  be  pulled  clown  in  his  favor.  In  order 
to  restore  the  equilibrium  the  defendant  may  do  either  of  two 
things.  He  may  either  take  out  part  or  all  of  what  the  plain- 
tiff has  put  into  his  side,  or  he  may  put  something  into  the  other 
side  of  the  balances.  When  he  takes  something  from  the  plain- 
tiff's side  this  is  recoupment,  a  reduction  or  diminution  of  what 
the  plaintiff  claims  against  him ;  but  if,  instead  of  taking  some- 
thing out  of  the  plaintiff's  side,  he  puts  some  outside,  independ- 
ent, matter  of  his  own  into  his  own  side  of  the  scales,  he  may 
thereby  restore  the  equilibrium ;  or,  if  he  puts  in  sufficient,  he 
may  have  the  scales  dip  on  his  side,  showing  that  the  balance 
is  in  his  favor.  When  the  defendant  does  this,  it  is  set-off. 
The  illustration  is  very  good  as  far  as  it  goes,  but  in  so  far  as 
it  relates  to  recoupment,  it  is  inexact  in  one  particular.  In  or- 
der to  constitute  recoupment,  what  is  taken  from  the  plaintiff's 
side  of  the  scales  must  be  in  consequence  of  some  delinquency 
or  deficiency  on  his  part.  Recoupment  arises  out  of  mutual 


§    238  COMMON    LAW    RECOUPMENT  447 

and  reciprocal  duties,  and  when  one  of  the  parties  (e.  g.,  the 
plaintiff)  has  failed  to  fully  discharge  the  duty  devolved  upon 
him,  this  failure  or  delinquency  on  his  part  may  be  given  in  evi- 
dence to  reduce  or  cut  down  what  he  would  otherwise  have 
been  entitled  to  recover.  Hence  payment  is  not  recoupment,  as 
it  does  not  represent  any  delinquency  or  deficiency  on  the  part 
of  the  plaintiff.  Recoupment,  therefore,  is  the  right  of  the  de- 
fendant to  cut  down  or  diminish  the  claim  of  the  plaintiff  in  con- 
sequence of  his  failure  to  comply  with  some  provision  of  the 
contract  sought  to  be  enforced,  or  because  he  has  violated  some 
duty  imposed  upon  him  by  law  in  the  making  or  performance  of 
that  contract.1  The  delinquency  or  deficiency  which  will  justify 
the  reduction  of  the  plaintiffs  claim  must  arise  out  of  the  same 
transaction,  and  not  out  of  a  different  transaction.  In  most 
cases  it  arises  out  of  some  fraud  or  misrepresentation  on  the 
part  of  the  plaintiff  in  the  procurement  of  the  contract,  but  it 
is  by  no  means  confined  to  that.  Very  frequently  it  is  a  mere 
extension  of  the  doctrine  of  failure  of  consideration.2 

§    238.    Common  law  recoupment. 

Recoupment  is  of  common  law  origin,  but  its  use  was  very 
much  more  restricted  than  it  is  under  modern  practice.  At  com- 
mon law,  the  want  or  failure  of  consideration,  fraud  in  the  pro- 
curement of  contract,  and  the  like,  could  be  proved  under  non 
assumpsit  or  nil  debet  in  an  action  on  an  unsealed  instrument, 
but  the  defendant  could  not  recover  the  excess,  if  any,  of  the 
plaintiff.  On  sealed  instruments  the  defendant  could  not  show 
failure  of  consideration,  fraud  in  the  procurement,  or  a  breach 
of  warranty  of  title,  or  soundness,  of  personal  property.  In- 
deed, no  matter  of  recoupment  could  be  shown  against  a  sealed 
instrument.  The  seal  was  deemed  of  such  solemnity  as  to  for- 
bid this.  Hence  for  all  matters  of  recoupment  against  sealed 
instruments  the  defendant  was  driven  to  a  separate  action 
against  the  plaintiff.3 

1.  25  Am.  &  Eng.  End.  Law  (2d  Ed.)  546. 

2.  Note  40   Am.   Dec.   323,  and   cases   cited;   25   Am.    &   Eng.    Encl. 
Law  (2nd  Ed.)   550,  551. 

3.  4  Min.  Inst.  792;  7  Va.  Law  Reg.  332. 


448  RECOUPMENT  §    239 

§    239.    Virginia  statute  of  recoupment.4 

The  original  statute  of  recoupment  in  Virginia  was  enacted 
in  1831,  and  the  statute  of  recoupment  is  frequently  referred  to 
as  the  Act  of  1831.  It  is  also  sometimes  referred  to  as  the 
statute  of  equitable  defenses,  and  the  plea  is  frequently  spoken 
of  as  a  plea  in  the  nature  of  a  plea  of  set-off,  but  the  act,  as  will 
appear  from  reading  it,  is  really  a  statute  of  recoupment  and 
bears  but  little  resemblance  to  a  set-off.  The  purpose  of  the  act 
was  to  enlarge  the  rights  of  defence  in  that  class  of  cases,  and 

4.  Section  3299  of  the  Code  is  as  follows: 

"In  any  action  on  a  contract,  the  defendant  may  file  a  plea,  alleg- 
ing any  such  failure  in  the  consideration  of  the  contract,  or  fraud 
in  its  procurement,  or  any  such  breach  of  any  warranty  to  him 
of  the  title  or  the  soundness  of  personal  property,  for  the  price  or 
value  whereof  he  entered  into  the  contract,  or  any  other  matter 
as  would  entitle  him  either  to  recover  damages  at  law  from  the 
plaintiff,  or  the  person  under  whom  the  plaintiff  claims,  or  to  relief 
in  equity,  in  whole  or  in  part,  against  the  obligation  of  the  contract; 
or,  if  the  contract  be  by  deed,  alleging  any  such  matter  arising  under 
the  contract,  existing  before  its  execution,  or  any  such  mistake  therein, 
or  in  the  execution  thereof,  or  any  such  other  matter  as  would 
entitle  him  to  such  relief  in  equity;  and  in  either  case  alleging  the 
amount  to  which  he  is  entitled  by  reason  of  the  matters  contained 
in  the  plea.  Every  such  plea  shall  be  verified  by  affidavit." 

Section  3300  of  the  Code  is  as  follows: 

"If  a  defendant,  entitled  to  such  plea  as  is  mentioned  in  the  pre- 
ceding section,  shall  not  tender  it,  or  though  he  tender  it,  if  it  be 
rejected  for  not  being  offered  in  due  time,  he  shall  not  be  precluded 
from  such  relief  in  equity  as  he  would  have  been  entitled  to  if  the 
preceding  section  had  not  been  enacted.  If,  when  an  issue  in  fact 
is  joined  thereon,  such  issue  be  found  against  the  defendant,  he  shall 
be  barred  of  relief  in  equity  upon  the  matters  alleged  in  the  plea, 
unless  upon  such  ground  as  would  entitle  a  party  to  relief  against 
a  judgment  in  other  cases.  Every  such  issue  in  fact  shall  be  upon 
a  general  replication  that  the  plea  is  not  true;  and  the  plaintiff  may 
give  in  evidence,  on  such  issue,  any  matter  which  could  be  given 
in  evidence  under  a  special  replication  if  such  replication  were  al- 
lowed." 

Section  3301  of  the  Code  is  as  follows: 

"Nothing  in  this  chapter  shall  impair  or  affect  the  obligation  of 
any  bond  or  other  deed  deemed  voluntary  in  law  upon  any  party 
thereto,  or  his  representatives." 

Sections  3302,  3304  are  given  in  the  notes  to  Chapter  XXX,  ante. 


§    239  VIRGINIA    STATUTE    OF    RECOUPMENT  449 

to  enable  parties  to  settle  in  one  action  all  matters  of  defence 
between  them  growing  out  of  the  same  transaction,  whether  such 
matters  were  of  tort  or  contract,5  or  as  stated  in  another  case: 
"The  plain  purpose  of  said  statute  is  to  give  the  same  measure 
of  relief  under  it  by  a  plea  that  could  be  obtained  by  the  defend- 
ant in  an  independent  action  brought  at  law  for  the  same  cause, 
or  in  equity  for  relief  growing  out  of  the  same  transaction,  and 
thus  to  prevent  a  cause  of  action  from  being  divided  into  two; 
so  that  to  give  effect  to  this  plain  purpose  it  is  essential  that 
it  should  include  contracts  under  seal  as  well  as  contracts  by 
parol."6  It  will  be  observed  that  the  statute  enumerates  specific- 
ally certain  matters  which  may  be  set  up  thereunder  and  also 
""any  other  matter  as  would  entitle  him  either  to  recover  dam- 
ages at  law  from  the  plaintiff  *  *  *  or  to  relief  in 
equity,  in  whole  or  in  part,  against  the  obligation  of  the  con- 
tract." It  has  been  held  very  properly  that  the  words  "or  any 
other  matter"  means  matters  of  like  kind  as  the  preceding  par- 
ticular enumeration,  and  hence  the  defence  under  the  statute  is 
limited  to  other  matters  growing  out  of  the  contract  in  suit.7 

The  Virginia  statute  applies  only  to  "any  action  on  a  con- 
tract," hence  if  the  plaintiff's  action  is  not  "on  a  contract"  the 
defendant  cannot  set  up  statutory  recoupment  as  a  defence. 
The  statute  is  purely  cumulative,  and  does  not  purport  to  be 
compulsory.  The  language  of  the  statute  is  "the  defendant  may 
file  a  plea."  The  first  paragraph  of  the  section  applies  to  all 
contracts,  sealed  and  unsealed,  while  the  second  paragraph  ap- 
plies to  sealed  contracts  only.  So  far  as  unsealed  contracts  are 
concerned,  the  provisions  of  that  section,  disconnected  from  the 
right  to  recover  the  excess  provided  by  §  3304,  would  seem  to 
have  been  useless,  and  to  have  conferred  no  right  which  did  not 
exist  before.  At  common  law  any  of  the  defences  enumerated 
in  that  section  could  have  been  set  up  under  the  general  issues 
of  nil  debet  and  non  assumpsit,  but  there  could  have  been  no 

5.  Newport  News  Co.  r.  Bickford,  105  Va.  182,  52  S.  E.  1011. 

6.  Fisher  r.  Burdette,  21  W.  Va.  626,  630. 

7.  Amer.    Manganese    Co.    v.   Va.    Manganese    Co.,    91    Va.    272,    21 
S.  E.  466. 

—29 


450  RECOUPMENT  §   239 

recovery  of  the  excess,  if  any.8  Two  important  changes  seem 
to  have  been  wrought  by  that  section :  First,  extending  the 
right  of  recoupment  to  actions  on  sealed  instruments,  which  did 
not  exist  at  common  law,  and,  second,  permitting  the  excess  over 
the  plaintiff's  demand  to  be  recovered  in  any  case,  whether  the 
plaintiff's  demand  be  upon  a  sealed  or  an  unsealed  contract. 
Code,  §  3300,  preserves  to  the  defendant  his  equitable  defenses 
in  two  cases :  ( 1 )  Where  no  plea  is  tendered  setting  them 
up,  and  (2)  where  such  plea  is  tendered  but  is  rejected  for  not 
being  offered  in  due  time.  If  rejected  for  any  other  reason  no 
provision  is  made  for  any  saving  in  favor  of  the  defendant. 
The  language  of  the  act  is  different  in  many  respects  from  the 
original  act  of  1831. 

It  is  noticeable  that  there  is  no  saving  of  legal  defences.  Just 
what  is.  the  effect  of  this  is  not  altogether  plain.  There  was  no 
necessity  for  any  saving  of  equitable  defences,  because  the 
remedy  afforded  by  §  3299  is  only  cumulative,  and,  further,  be- 
cause where  equity  has  once  acquired  jurisdiction  of  a  subject 
and  is  administering  relief  where  none  exists  at  law,  it  does  not 
lose  its  jurisdiction  simply  because  a  legal  remedy  is  furnished 
by  statute,  unless  the  equity  jurisdiction  is  taken  away  by  statute. 
It  would  seem,  therefore,  that  there  was  no  occasion  for  the 
saving  provided  by  §  3300.  It  suggests,  however,  the  possi- 
bility that  §  3299  was  intended  to  take  away  the  common  law 
defence  of  recoupment  in  all  other  cases  on  the  principle  ex- 
pressio  un'ms,  exclusio  est  altcrius.  Was  it  so  intended?  The 
language  of  the  statute  is,  "the  defendant  may  file  a  plea." 
This  seems  to  be  permissive  only.  He  is  not  compelled  to  file 
it,  but  may  file  it.  Furthermore,  the  general  rule  of  law  is  that 
a  statute  will  not  be  held  to  repeal  the  common  law  in  any  case 
unless  it  plainly  does  so.  This  statute  certainly  does  not  plainly 
repeal  the  common  law,  and  the  doctrine  of  expressio  unius,  etc., 
is  by  no  means  a  safe  guide  in  all  cases  to  determine  the  legis- 
lative intent.  For  our  present  purpose  we  may  assume  that  the 
common  law  is  still  in  force.  A  defendant  then  in  an  action  on 
an  unsealed  contract  may  defend  (1)  as  at  common  law,  or  (2) 

8.  Columbia  Accident  Ass'n  v.  Rocky,  93  Va.  678,  25  S.  E.  1009. 


§   239  VIRGINIA    STATUTE   OF    RECOUPMENT  451 

under  §  3299.  The  relief  is  the  same,  except  as  to  the  excess 
over  the  plaintiff's  demand.  Such  excess  could  not  be  recovered 
in  the  plaintiff's  action  at  common  law.  For  this  he  was  put  to 
his  cross-action.  He  could  recover  to,  the  extent  of  the  plain- 
tiff's demand  and  surrender  the  excess,  or  else  stay  out  alto- 
gether and  bring  his  cross-action  for  the  whole  matter  of  re- 
coupment.9 He  could  not  recoup  for  a  part,  and  sue  in  a  sep- 
arate action  for  the  residue.  If  a  defendant  desires  to  recover 
the  excess  he  must,  therefore,  make  his  defence  under  Code  § 
3299,  by  a  szt'orn  plea. 

If  the  plaintiff  sues  in  debt  or  assumpsit  on  a  simple 
contract,  and  the  defendant  pleads  the  general  issue,  he 
may,  under  his  plea,  amongst  other  things,  rely  upon  mat- 
ter of  recoupment.  Suppose,  for  example,  the  plaintiff  sues 
in  assumpsit  for  a  bill  of  goods  amounting  to  $1,000.  -The 
defendant  claims  (1)  that  he  never  ordered  the  goods  or 
accepted  them,  and  (2)  that  the  goods  were  not  as  repre- 
sented, and  hence  he  is  damaged  to  the  extent  of  $500.  Now, 
clearly  either  of  these  defences  could  be  relied  on  under  the 
general  issue.  But  suppose  he  elects  to  make  only  the  first 
defence  and  says  nothing  as  to  the  other,  and  there  is  a  judgment 
against  him  for  the  full  amount  of  the  plaintiff's  claim,  can  he 
then  bring  his  separate  action  for  the  matter  of  recoupment? 
The  books  are  filled  with  cases  holding  that  the  doctrine  of  res 
judicata  "embraces  not  only  what  is  actually  determined  in  the 
first  suit,  but  also  extends  to  any  other  matter  which  the  parties 
might  have  litigated  in  the  case."10  Now,  plainly  the  matter 
of  recoupment  might  have  been  litigated  in  the  plaintiff's  suit. 
How.  then,  is  the  defendant  to  escape  from  this  dilemma?  He 
can  only  do  so,  if  at  all,  upon  the  ground  that  the  rule  has  no 
application  to  matters  of  set-off,  recoupment  or  counter-claims ; 
that  as  to  these  the  defendant  has  his  election  either  to  assert 
them  in  the  plaintiff's  action  or  by  cross-action,  and  show  by 
parol,  for  there  is  no  other  way  of  showing  it,  that  the  matter 

9.   Huff  v.  Broyles,  26  Gratt.  283. 

10.  Fishburne  v.  Ferguson.  85  Va.  321,  324,  7  S.  E.  361;  Aurora 
City  ?'.  West,  7  Wall.  82;  3  Va.  Latf  Reg-.  273. 


452  RECOUPMENT  §    239 

of  recoupment  was  not  set  up  in  the  plaintiff's  action.11  It 
seems  settled  that  at  common  law  the  defendant  could  always 
assert  his  matter  of  recoupment  by  a  separate  action,  and  it  has 
been  held  that  the  object  of  §  3299  was  "to  enlarge  the  right  of 
defence  and  not  to  impair  any  previous  right,  or  to  take  away 
such  defences  where  the  law  previously  permitted  them  to  be 
made."12  It  would  seem,,  therefore,  that  the  right  to  the  cross- 
action  still  exists.13 

Reinvestment  of  Title  to  Real  Estate. — There  is  one  class 
of  cases,  however,  to  which  the  defence  provided  by  §  3299  does 
not  apply.  Where  an  action  is  brought  to  recover  for  the  pur- 
chase price  of  real  estate  and  the  defence  involves  a  rescission 
of  the  contract  and  the  reinvestment  of  the  plaintiff  with  the 
title,  it  has  been  repeatedly  held  that  §  3299  does  not  apply,  be- 
cause the  court  of  law  has  not  the  needed  machinery  either  to 
•compel  or  supervise  the  making  of  a  conveyance.14 

It  has  been  insisted  that  §  3299  cannot  be  relied  on  in  any 
case  where  the  court  cannot  give  complete  relief  in  the  case  in 
which  the  plea  is  offered.15  For  example,  if  the  legal  title  has 
not  been  conveyed  to  the  defendant  and  he  is  sued  for  a  part 
of  the  purchase  money,  it  is  said  that  if  he  were  allowed  to  re- 
coup for  a  part  and  the  plaintiff  recovered  the  residue,  the  re- 
sult of  the  litigation  would  be  to  leave  the  plaintiff  with  the  bal- 
ance of  the  purchase  money  in  his  pocket,  and  the  defendant  still 
without  the  legal  title,  thus  necessitating  a  suit  in  equity  to  obtain 
the  title.  This,  it  is  argued,  is  not  complete  relief,  and  hence 
the  defence  of  statutory  recoupment  cannot  be  made  under 
§  3299.  The  cases,  however,  have  not  gone  this  far.  They 
have  restricted  the  refusal  to  the  case  where  it  is  necessary  to 
reinvest  a  plaintiff  with  title  to  real  estate.  Indeed,  this  ques- 
tion has  been  set  at  rest,  and  very  properly,  by  Watkins  v.  West 

11.  19  Encl.  PI.   &  Pr.  931. 

12.  Columbia  A.  Ass'n  v.   Rockey,  93   Va.   678,  25   S.    E.  1009. 

13.  Kenzie  v.  Reiley,  100  Va.  709,  42  S.  E.  872. 

14.  Shiflett  v.    Orange    Humane    Society,   7    Gratt.   297;    Mangus   v. 
McClelland,  93  Va.  786,  22  S.   E.  364. 

15.  4  Min.  Inst.  796;  Note  7  Va.  Law  Reg.  250,  ff. 


§    239  VIRGINIA    STATUTE    OF    RECOUPMENT  453 

Wytheville  Land  Co.,  92  Va.  1,  22  S.  E.  554.  In  this  case  the 
plaintiff  had  sold  real  estate  to  the  defendant,  and  the  defend- 
ant had  re-conveyed  the  property  to  a  trustee  to  secure  the  bal- 
ance of  the  purchase  money.  A  part  of  the  purchase  price  had 
been  paid  in  cash.  The  plaintiff  sued  on  the  bonds  for  the  de- 
ferred payments,  and  the  defendant  sought  to  recoup  a  part  of 
the  consideration  under  §  3299  on  account  of  fraudulent  rep- 
resentations made  by  the  plaintiff  which  induced  the  contract 
of  sale.  These  pleas  were  rejected  by  the  trial  court,  and,  on 
appeal,  it  was  insisted  that  they  were  properly  rejected  because 
the  defence  set  up  under  them  was  purely  equitable  and  could 
not  be  made  at  law,  and  that  the  defendant  by  his  plea  sought  to 
rescind  and  set  aside  his  contract  of  purchase  and  to  reinvest 
the  vendor  with  the  title  to  the  lots.  In  dealing  with  this  ques- 
tion, the  court  said :  "We  do  not  understand  this  to  be  the 
purpose  or  effect  of  these  pleas.  On  the  contrary,  they  ex- 
pressly set  out  the  value  of  the  lots  in  consequence  of  the  false 
representations  complained  of  and  only  claim  damage  by  way 
of  offset  for  the  difference.  The  purchase  price  of  the  lots  was 
$1,000.  The  pleas  alleged  that  they  'are  now  worth  $100,  and 
that  the  damage  sustained,  which  is  filed  as  an  offset,  amounts  to 
$900.  No  rescission  of  the  contract  of  sale  is  asked  for,  nor 
is  arty  needed.  The  defendant  has  a  deed  to  the  lots,  and  if  he 
were  to  prevail  in  his  defence,  he  would  only  have  to  move  the 
court,  under  the  statute  (§  2498)  to  have  the  deed  of 
trust  resting  on  the  lots  marked  'satisfied'  on  the  deed  book  and 
produce  the  judgment  in  his  favor  as  evidence  of  its  satisfac- 
tion." The  court  then  quotes  the  statute  and  examines  some  of 
the  preceding  cases  discussing  it,  and  concludes:  "In  a  case, 
therefore,  where  the  equitable  grounds  relied  on  would  require 
a  rescission  of  the  contract  and  a  reinvestment  of  the  vendor 
with  the  interest  alleged  to  have  been  sold,  a  plea  by  way  of  spe- 
cial set-off  under  §  3299  could  not  be  relied  on,  but  where  no 
rescission  is  asked  for  and  none  is  needed  —  the  only  purpose  of 
the  plea  being  to  ascertain  the  damage  sustained  by  reason  of 
the  default  of  the  vendor  —  the  plea  can  be  relied  on  and  the  de- 
fence made  at  law  under  the  statute.  The  pleas  were  therefore 


454  RECOUPMENT  §    239 

improperly  rejected  on  the  ground  that  the  defence  could  not 
be  made  at  law." 

The  defendant,  however,  must  waive  his  right  to  a  rescis- 
sion of  the  contract  in  equity,  and  must,  by  his  plea,  go 
for  reimbursement  exclusively  in  the  form  of  damages  for  the 
vendor's  breach  of  contract.  The  defendant  is  put  to  his  elec- 
tion between  two  rights.  He  may  either  go  into  equity  for  re- 
scission, or  seek  damages  at  law.  He  cannot  hold  to  both.16 

If  a  plaintiff,  having  conveyed  title  to  real  estate  to  the  defend- 
ant, sues  at  law  to  recover  a  part  or  all  of  the  purchase  price, 
and  the  defendant  files  a  plea  which  seeks  rescission  merely,  the 
plea  is  bad,  as  it  requires  a  reinvestment  of  the  plaintiff  with 
the  title,17  and  the  plea  is  not  aided  by  a  tender  of  reconveyance, 
as  a  court  of  law  has  no  machinery  for  supervising  such  a  con- 
veyance and  determining  whether  it  is  a  proper  conveyance.18 
Nor  is  a  plea  good  which  offers  to  rescind.19  In  each  of  these 
cases  the  plea,  if  received,  would  require  a  court  of  law  to  do 
what  it  has  no  power  to  do,  for  if  title  is  to  be  re-conveyed  to 
the  plaintiff,  a  court  of  law  has  no  machinery  by  which  it  can 
make,  or  cause  to  be  made,  or  examine  or  pass  upon,  when  made, 
a  deed  to  the  plaintiff.  For  this  reason  relief  by  a  plea  under 
§  3299  is  refused,  and  the  party  is  left  to  his  relief,  in  equity, 
if  any. 

Rejection  of  Plea  under  Statute. — Whether  a  party  who  offers 
a  plea  under  §  3299  in  time  and  has  it  rejected  can  obtain  relief 
in  equity  has  not  been  expressly  decided.  Section  3300  saves 
the  relief  in  equity  when  the  defendant  docs  not  tender  such 
plea,  "or,  though  he  tender  it,  if  it  be  rejected  for  not  being 
offered  in  due  time."  The  section  further  provides,  if,  when  is- 
sue in  fact  is  joined  thereon,  such  issue  be  found  against  the 
defendant,  he  shall  be  barred  of  relief  in  equity  upon  the  matter 
alleged  in  the  plea,  unless  upon  such  ground  as  would  entitle  a 
party  to  relief  against  a  judgment  in  other  cases.  The  statute 

16.  Watkins  v.  Hopkins,  13  Gratt.  745;  4  Min.  Inst.  796,  797. 

17.  Shiflett  v.  Orange  Humane  Society,  7  Gratt.  297. 

18.  Mangus  v.  McClelland,  93  Va.  786,  22  S.  E.  364. 

19.  Tyson  v.  Williamson,  96  Va.   636,   32   S.    E.   42. 


§    239  VIRGINIA    STATUTE   OF   RECOUPMENT  455 

is  silent  as  to  the  effect  of  a  plea  tendered  in  time,  but  rejected 
because  of  the  inability  of  a  court  of  law  to  grant  relief,  or 
where  no  issue  in  fact  is  joined  thereon.  I  know  of  no  decided 
case  in  which  the  point  was  involved.  In  Shiflett  v.  Orange  Hu- 
mane Society,  7  Gratt.  297,  Judge  Allen  says:  "The  rejection 
of  the  plea  does  not  preclude  the  party  from  applying  to  a  court 
of  equity  for  such  relief  as  he  may  show  himself  entitled  to  on 
account  of  the  matters  alleged  in  the  plea."  The  plea  in  that  case 
was  filed  in  time,  but  was  rejected.  The  only  point  before  the  court 
was  whether  the  plea  was  properly  rejected.  It  was  not  necessary 
at  all  to  say  what  future  relief,  if  any,  the  defendant  might  be 
entitled  to,  but  the  conclusion  stated  so  accords  with  right  and 
justice  that  it  will  probably  be  followed.  Indeed,  any  other  con- 
clusion would  work  the  most  serious  injustice  and  practically 
frighten  defendants  away  frdm  offering  pleas  under  §  3299.  In 
a  more  recent  case,20  Judge  Keith  was  careful  to  say  that  the 
decision  of  the  court  was  "without  prejudice  to  the  defendant 
to  go  into  a  court  of  equity  for  such  relief,  etc."  but  in  a  still 
later  case?1  the  subject  is  not  mentioned. 

In  the  most  recent  reference  to  this  subject,22  it  is  said  that 
if  equitable  defences  which  are  only  available  under  §  3299  of 
the  Code  are  not  made  at  law,  they  may  be  made  in  a  suit  in 
equity  brought  to  enforce  the  judgment  at  law,  provided  nothing 
occurred  in  the  action  at  law  which  the  statute  declares  precludes 
the  defendant  from  relief  in  equity.  This  throws  but  little  light 
on  the  subject,  as  in  that  case  the  plea  was  not  offered  at  law. 

If  the  plea  is  so  framed  as  to  show  that  the  defendant  does 
not  seek  rescission,  .but  an  affirmance,  he  may  lay  his  damages 
at  any  sum  he  pleases,  even  though  it  amounts  to  the  full  amount 
of  the  purchase  money,  but  this  should  be  made  to  appear  clearly. 
The  value  of  the  property  is  to  be  ascertained  as  of  the  date 
of  the  contract  for  its  purchase,  and  not  as  of  the  date  of  the 
plea  pleaded,23  and  it  seems  well-nigh  inconceivable  that  a  pur- 
chaser could  be  found  of  property  absolutely  worthless,  and  the 
plea  which  claims  complete  damages  for  false  representations 

20.  Mangus  v.  McClelland,  93  Va.  786,  790,  22  S.  E.  364. 

21.  Tyson  v.  Williamson,  96  Va.  636,  32  S.   E.  42. 

22.  Selden  r.  Williams,  108  Va.  542,  62  S.  E.  380. 

23.  Tyson  v.  Williamson,  supra. 


456  RECOUPMENT  §    239 

with  reference  to  property  for  which  the  defendant  had  con- 
tracted to  pay  a  large  sum  of  money,  would  seem  of  necessity 
to  seek  rescission.  Such  a  plea  should  show  very  clearly,  if 
not  expressly,  that  the  defendant  still  insisted  on  affirmance,  and 
not  on  rescission. 

Action  for  Purchase  Price  of  Personal  Property. — If  the  sub- 
ject matter  of  the  litigation  be  personal  property,  there  is  no 
trouble  about  administering  complete  justice  in  a  court  of  law. 
Here  the  course  is  easy.  If  the  purchaser  elects  to  keep  the 
property,  he  affirms  and  simply  recoups  the  damages,  or  he  may 
rescind,  and  if  he  does  rescind,  the  contract  of  sale  is  by  the 
judgment  of  the  court  avoided  ab  initio  and  thereby  the  plain- 
tiff is  reinvested  with  the  title  as  fully  as  the  defendant  would 
be  upon  an  execution  satisfied  in  an  action  of  trover. 

\ 

Notice  of  Recoupment. — When  recoupment  is  sought  to  be  set 
up  under  one  of  the  broad  general  issues,  the  courts  are  in  con- 
flict as  to  the  necessity  for  notice  of  an  intention  to  rely  on  such 
matters.24  The  Virginia  cases  give  no  intimation  of  such  a  re- 
quirement, but  the  practice  of  demanding  a  bill  of  particulars 
under  §  3249  of  the  Code  is  so  general  that  a  plaintiff  will 
rarely  be  taken  by  surprise,  and,  if  he  is,  it  is  his  own  fault. 

Essentials  of  a  Valid  Plea. — There  are  two  essentials  of  a  valid 
plea  under  §  3299.  They  are:  (1)  The  plea  must  allege  the 
amount  to  which  the  defendant  is  entitled  by  reason  of  the  mat- 
ters alleged  in  the  plea,25  and  (2)  the  plea  must  be  sworn  to. 
But  it  would  probably  be  too  late  to  object  to  the  want  of  an  affi- 
davit after  an  issue  of  law  or  fact  has  been  taken  on  a  plea  not 
so  verified.26 

Relief  in  Equity. — The  defendant  is  not  obliged  to  avail  him- 
self of  the  relief  afforded  by  the  statute,  but  may  go  into  equity 
for  that  purpose,  and  when  he  does,  it  is  not  necessary  that  he 
should  aver  in  his  bill  any  reason  or  excuse  for  not  availing  him- 
self of  such  equitable  defence  at  law.27 

24.  19  End.  PI.   &  Pr.   744,  and   notes. 

25.  Tyson  v.   Williamson,   96   Va.   637,   639,   32   S.   E.   42. 

26.  Lewis  z'.'  Hicks,  96  Va.   91,  30  S.   E.   466. 

27.  Bias  v.  Vickers,  27  W.  Va.  456;  Selden  v.  Williams,  supra. 


§  239 


VIRGINIA  STATUTE;  OF  RECOUPMENT 


457 


Recoupment  (Common  Law  and  Statutory)  and  Set-Offs  may 
be  contrasted  as  follows:28 


SET-OFF. 

1.  Different     transac- 

tions. 

2.  Must   be   liquidated. 

3.  May     recover    ex- 

cess, §  3304. 

4.  Must    be     pleaded 

or  list  filed,  §  3298. 


5.  May  be  used 
against  sealed  in- 
strument. 

6  Claims  to  which 
the  defendant  has 
only  an  equitable 
title  may  be  re- 
lied on,  §  2860, 
ante,  §  50. 


COM. 


LAW         RECOUP- 
MENT. 


Same    transaction. 

Need     not    be     liqui- 
dated. 
No    recovery    over. 

Shown  under  gen- 
eral issues  of  nil 
debet  and  non  as- 
sumpsit. 

Cannot  be  used 
against  sealed  in- 
strument. 

Purely  equitable  de- 
fences cannot  be 
set  up. 


STAT.     RECOUPMENT, 

§   3299. 
Same    transaction. 

Need    not     be    liqui- 
dated. 
May  Recover  excess. 

Special      plea     sworn 
to,  §  3299. 


May  be  used  against 
sealed  instrument. 

Purely  equitable  de- 
fences relied  on. 
See  Kinzie  v. 
Riely,  100  Va. 
709,  42  S.  E.  872. 


Professor  Lile's  excellent  comments  on  this  subject  are  given 
in  the  foot  note.29 


28.  7  Va.  Law  Reg.  332;  Sterling  Organ  Co.  T,  House,  25  W.  Va.  64. 
This  case  is  very  full  on  the  subject. 

29.  "As  between  common  law  recoupment  and  statutory  recoupment, 
the  defendant  may   still  use   either  at  his  option,  unless    (1)    he   de- 
sires a  recovery  over,  or  (2)  the  action  is  on  a  sealed  instrument.    The 
statute  has  in  nowise  abridged  the  scope  of  the  general  issue  or  the 
extent  of  common  law  recoupment,  and  the  latter  may  still  be   set 
up  under  the  general  issue,  and  with  like  effect,  as  at  common  law. 
Columbia,  etc.,  Association  v.  Rockey,  93  Va.  678,  25  S.  E.  1009.     The 
object  of  the  statute  was  to  enlarge  the  scope  of  the  common  law 
recoupment    in    the    two    particulars    already    mentioned,    namely,    to 
permit  a  recovery  over  against  the  plaintiff,  and  to  allow  recoupment 
against  a  sealed  instrument. 

"A  few  examples  may  aid  some  of  our  younger  brethren  in  com- 
prehending the  distinctions  mentioned:  1.  A  sells  B  a  horse  for 
$250,  with  warranty  of  soundness,  and  takes  his  note  for  that  amount. 
The  warranty  is  broken,  and  the  horse  is  worth  only  $100.  In  an 


458  RECOUPMENT  §    240 

§    240.    Who  may  rely  upon  the  statute. 

In  the  absence  of  the  insolvency  of  the  principal,  or  some  other 
equitable  ground,  one  who  is  a  mere  surety  on  a  bond  but  no 
party  to  the  contract  out  of  which  the  bond  arose  cannot  avail 
himself  of  the  defence  given  by  §  3299.  For  instance,  if  the 
purchaser  of  land  gives  a  bond  with  surety  for  the  purchase 

action  of  debt  by  A  on  the  note,  B  may,  under  the  general  issue  of 
nil  debet,  prove  the  breach  of  warranty  and  the  extent  of  his  damage, 
thus  reducing  A's  recovery  to  $100.  This  is  common  law  recoupment. 
B  might  have  proceeded  under  §  3299  and  exercised  his  right  of 
statutory  recoupment,  but  the  result  would  have  been  the  same,  and 
he  would  have  derived  no  advantage  from  the  statutory  proceeding. 

"2.  Suppose  the  same  facts,  save  that  B  paid  $200  of  the  250  cash, 
and  the  action  is  for  the  recovery  of  the  balance  of  $50.  Here,  if 
B  relies  upon  common  law  recoupment,  he  repels  A's  claim  of  $50, 
but  his  total  damage  is  $150 — so  that  he  is  still  out  of  pocket  $100, 
and  it  is  doubtful  whether  he  has  not  exhausted  his  remedy  under 
the  doctrine  of  res  judicata.  The  proper  step  for  him,  therefore,  is  to 
resort  to  statutory  recoupment  (§  3299),  whereby  he  would  not  only 
repel  the  claim  for  $50,  but  obtain  a  judgment  over  against  the 
plaintiff  for  the  full  amount  of  damages  suffered. 

"3.  Suppose  the  same  facts  as  in  the  case  first  stated,  except  that 
B  executes  his  bond  (instead  of  a  note)  for  $250.  Here  the  breach 
of  warranty  could  not  be  set  up  under  the  general  issue,  by  reason 
of  the  seal,  which  shuts  off  all  inquiry  into  the  sufficiency  of  the 
consideration.  Hence  B  must  either  suffer  judgment,  and  bring  an 
independent  action  for  his  damages,  or  else  proceed  by  statutory 
recoupment — §  3299,  in  terms,  giving  this  right  in  case  of  a  sealed 
instrument. 

"4.  Suppose  in  any  of  the  foregoing  cases  that  there  had  been 
no  breach  of  warranty  or  other  failure  of  the  seller  to  comply  with 
his  contract  in  the  sale  of  the  horse,  but  that  B  held  A's  note  for 
the  same,  or  a  greater  or  less,  amount,  executed,  before  or  after  the 
sale  of  the  horse,  as  the  purchase  price  of  a  steam  engine.  Here, 
in  an  action  by  A  against  B  for  the  purchase  price  of  the  horse, 
B  might  use  A's  note  for  the  steam-engine  as  a  set-off,  either  re- 
pelling A's  claim  in  whole  or  in  part,  or  recovering  the  excess  over 
against  him,  according  to  the  relative  amounts  of  the  two  notes.  This 
would  be  set-off  and  not  recoupment,  since  the  claim  asserted  by 
the  plaintiff  and  that  set  up  by  the  defendant  arise  out  of  distinct 
transactions,  in  no  way  connected  with  each  other.  Neither  common 
law  nor  statutory  recoupment  would  avail  in  this  case."  7  Va.  Law 
Reg.  332,  333. 


§    240  WHO  MAY  RELY  UPON  THE  STATUTE  459 

price  and  the  grantor  conveys  the  land  to  the  purchaser  with  a 
warranty  that  he  has  the  right  to  convey,  the  covenant  is  broken, 
if  at  all,  as  soon  as  the  deed  is  made,  and  the  grantee  may  sue 
at  once  without  waiting  eviction  or  special  damage ;  or,  if  the 
purchaser  is  sued  on  his  bonds  for  the  purchase  price,  he  may 
recoup  his  damages  under  §  3299  of  the  Code,  or  he  may  stay 
out  and  bring  his  independent  action  for  the  breach  of  the  cov- 
enant. Where  there  has  been  neither  eviction  nor  special  damages 
arising  from  the  breach,  if  he  should  set  up  the  breach  he  could 
recoup  only  nominal  damages,  but  this  would  bar  any  further 
recovery  if  there  should  be  subsequent  eviction  from  the  land  in 
whole  or  in  part.  For  this  reason  he  may,  and  doubtless  would, 
prefer  not  to  rely  upon  statutory  recoupment,  but  to  stay  out 
and  bring  a  separate  action  for  damages  in  the  event  that  he 
should  be  evicted.  This  right  of  election,  however,  belongs  to 
the  principal  alone,  although  the  recovery,  if  any,  would  inure 
to  the  benefit  of  the  surety.  The  principal  alone  has  the  right 
and  power  to  determine  whether  he  will  assert  his  rights  against 
the  creditor  in  the  latter's  suit,  or  will  bring  a  cross-action  against 
him.  The  surety  has  no  claim  for  damages  against  the  grantor 
for  a  breach  of  covenant  in  a  deed  to  which  he  is  no  party  and 
under  which  he  acquired  no  interest,  and  hence  would  not  be 
permitted  to  occupy  the  position  in  the  suit  of  claiming  damages 
against  the  grantor.  This  right,  as  stated,  belongs  to  the  prin- 
cipal alone.30  Nor  can  a  surety  set-off  or  recoup  against  the 
plaintiff's  claim  a  purely  legal  demand  growing  out  of  an  en- 
tirely different  transaction  from  the  claim  asserted  by  the  plain- 
tiff. The  provisions  of  §  3299  were  not  intended  to  alter 
or  modify  that  provision  of  §  3298  which  excludes  the 
right  of  a  surety  to  set  off  against  the  plaintiff's  demand  a  claim 
due  to  such  surety  as  principal  by  the  plaintiff.31 

In  a  common-law  action  against  a  principal  and  surety  on  a 
bond,  the  surety  cannot  set  up  a  defence  under  the  statute  that 
the  plaintiff  creditor  without  the  consent  of  the  surety  had  re- 
leased a  lien  which  he  had  on  the  property  of  the  principal 

30.  Kinzie  r.  Riely,  100  Va.  709,  42  S.  E.  872. 

31.  Stimmell  v.  Benthal,  108  Va.  141,  60  S.  E.  765. 


460  RECOUPMENT  §    240 

debtor  as  a  security  for  the  debt.     Such  a  defence  is  a  matter  of 
exclusive  equitable  jurisdiction.32 

If,  however,  the  matter  of  relief  consists  of  mere  failure  of 
consideration,  something  showing  that  the  plaintiff  has  no  right 
to  recover  anything  on  account  of  some  defect  in  the  contract, 
not  giving  rise  to  a  separate  cause  of  action,  then  it  would  seem 
that  the  defence  may  be  made  by  the  surety.  Failure  of  consid- 
eration here  means  practically  a  want  of  consideration,  e.  g.,  if 
the  sale  be  of  a  patent  right,  and  the  patent  is  void.33 

32.  Bank  v.  Parsons,  42  W.  Va.  137,  24  S.  E.  554. 

33.  Gillespie  v.  Terrance,  25  N.  Y.  306,  82  Am.  Dec.  554. 


CHAPTER  XXXI. 
CONTINUANCES. 

§  241.  Discretion  of  trial  court. 

§  242.  When  motion  should  be  made. 

§  243.  Causes  for  continuance. 

1.  Continuance  of  right. 

2.  Absence  of  witness. 

(a)  Materiality  of  witness. 

(b)  Inability   to   prove   same   facts   by  any   other  wit- 

ness who  is  present. 

(c)  Use    of   due   diligence    to   procure   witness   or   get 

his  evidence. 

(d)  Reasonable    probability    that    witness    can    be    had 

at  another  trial. 

3.  Absence  of  papers. 

4.  Surprise. 

5.  Absence  of  counsel. 

6.  Absence  of  a  party. 

7.  Any  change  in  the  pleadings. 

8.  Failure  to  serve  process. 
§  244.  Refusing  a  continuance. 

§  245.  Cost  of  continuance. 

§    241.    Discretion  of  trial  court. 

A  continuance  is  to  be  distinguished  from  fixing  a  day  for 
trial,  or  postponement.  The  latter  does  not  contemplate  a  de- 
lay to  another  term,  but  to  a  later  day  of  the  same  term,  and 
is  more  readily  granted  than  a  continuance,  which  means  defer- 
ring the  case  to  a  later  term.  A  motion  for  a  continuance  is 
always  addressed  to  the  sound  discretion  of  the  trial  court,  and 
though  the  action  of  the  trial  court  is  subject  to  the  supervision 
of  the  appellate  court,  it  will  not  be  reversed  unless  plainly  er- 
roneous. Courts  are  generally  more  liberal  in  sustaining  a 
motion  to  continue  than  in  overruling  it,  as  the  damage  in  the 
first  case  involves  only  delay,  while  in  the  latter  it  may  affect 
substantial  rights.1  A  cause  is  rarely  reversed  because  a  motion 

1.  N.  &  W.  v.  Shott,  92  Va.  34,  22  S.  E.  811;  Payne  v.  Tancil,  98  Va. 
262,  35  S.  E.  725. 


462  CONTINUANCES  §§  242-243 

for  a  continuance  has  been  improperly  granted,  but  a  criminal 
cause  was  reversed  in  Virginia  and  a  new  trial  ordered  because 
the  trial  court  had  improperly  refused  to  force  the  common- 
wealth to  trial  at  a  given  term  of  the  court.2  The  effect  was 
simply  to  give  the  prisoner  a  new  trial,  although  he  had  already 
had  a  fair  trial  at  the  term  to  which  his  case  was  continued.  A 
mere  statement  of  the  facts  would  seem  sufficient  to  demonstrate 
the  error  of  the  ruling.3 

§    242.    When  motion  should  be  made. 

Usually  a  motion  for  a  continuance  should  be  made  when  the 
case  is  called  for  trial,  and,  except  for  a  supervening  cause,  a 
motion  thereafter  is  too  late;  but  here,  too,  a  wise  discretion  is 
vested  in  the  trial  court.  Properly  a  motion  to  continue  on 
account  of  absence  of  a  material  witness  should  not  be  made 
until  the  issue  is  made  up,  for  upon  the  issue  depends  the  ma- 
teriality of  the  witness.  The  very  absence  of  the  witness,  how- 
ever, may  prevent  a  party  from  concerting  his  defence,  so  the 
matter  is  left  largely  to  the  discretion  of  the  trial  court. 

§    243.    Causes  for  continuance. 

1.  Continuance  of  Right. — It  is  provided  by  statute  in  Vir- 
ginia,4 Illinois,  and  probably  other  States,  that  any  party  to  an 
action  or  proceeding  in  any  court  may  have  a  continuance  as  a 
matter  of  right  when  the  General  Assembly  is  in  session  and  a 
member  or  officer  of  the  General  Assembly  has  been  employed 
or  retained  by  him  as  attorney  in  such  action  or  proceeding 
prior  to  the  beginning  of  the  session  of  the  General  Assembly. 
Generally  also,  a  party  to  whom  an  issue  is  tendered  is  entitled 
as  a  matter  of  right  to  a  continuance  at  the  term  at  which  the 
issue  is  tendered,  but  the  party  tendering  the  issue  must  always 
come  prepared  to  sustain  his  position  and  is  not  entitled  to  a 
continuance.5  Some  of  the  judges,  however,  hold  that  if  the 

2.  Benton  v.  Com.,  90  Va.  328,  18  S.   E.  282. 

3.  Benton's  Case,  91  Va.  782,  21  S.   E.  495. 

4.  Acts,   1906,   ch.  29;   3   Code,  p.   544. 

5.  Harrington  v.  Harkins,  1  Rob.  591;  4  Min.  Inst.  810. 


§    243  CAUSES    FOR    CONTINUANCE  463 

defendant  pleads  one  of  the  narrow  general  issues  the  plaintiff 
will  be  compelled  to  go  to  trial  at  the  same  term  unless  he  can 
show  cause  for  a  continuance,  as  he  could  reasonably  expect  to 
prepare  for  such  a  plea,  and  would  not  be  taken  by  surprise. 
The  general  rule,  however,  is  as  above  stated,  and  would  seem 
to  indicate  that  it  is  necessary  for  the  defendant  to  make  up 
the  issue  at  the  rules  if  he  wishes  to  force  a  trial  at  the  first 
term. 

A  new  party  brought  into  a  suit  by  a  scire  facias  or  motion 
may  have  the  case  continued  as  a  matter  of  right  at  the  term  at 
which  the  order  is  entered  making  him  a  party.  If,  however, 
the  case  be  revived  at  rules  by  scire  facias  he  is  not  entitled  to 
such  continuance  as  a. matter  of  right.6 

2.  Absence  of  Witness. — By  far  the  most  frequent  cause  for 
a  continuance  is  the  absence  of  a  material  witness.  On  an  appli- 
cation for  a  continuance  on  account  of  the  absence  of  a  witness, 
it  is  necessary  for  the  party  making  the  application  to  show,  not 
only  the  absence  of  the  witness,  but  his  materiality,  due  dili- 
gence to  secure  his  presence,  inability  to  prove  the  same  facts  by 
another  witness  who  is  available,  and  reasonable  probability  of 
being  able  to  secure  the  evidence  on  another  trial. 

(a)  Materiality   of   the  witness. — In   order  to  show  the  ma- 
teriality of  the  witness,  it  is  usually  necessary  to  have  the  affi- 
davit or  testimony  of  some  one  who  has  communicated  with 
the '  witness,   verbally  or  otherwise,  and  knows  what  the  wit- 
ness will  testify  to,  and  its  materiality.7 

(b)  Inabilit\  to  prove  the  same  facts  by  any  other  witness 
who  is  present.     Generally,  if  the  same  facts  can  be  proved  by 
Dther  witnesses  who  are  present,  the  absence  of  the  witness  is 
10  ground  for  a  continuance,  and  even  after  a  continuance  has 

sen  granted  on  account  of  the  absence  of  a  material  witness, 
it  may,  during  the  same  term,  be  set  aside,  and  the  party  forced 
ito  trial,  if  it  be  discovered  that  the  same  facts  that  were  ex- 

6.  Code.  §  3308;   Stearns  v.   Richmond  Paper  Co.,   86  Va.   1034.   11 
>.   E.   1057. 

7.  Tompkins  r.   Burgess,   2   W.   Va.   187;    Dimmey  r.   Wheeling   R. 
:o..  27  W.  Va.  32. 


464  CONTINUANCES  §    243 

pected  to  be  proved  by  the  absent  witness  can  be  proved  by  an- 
other witness  who  is  present.8  Sometimes,  however,  the  char- 
acter of  the  witness  himself,  or  of  the  other  witnesses,  or  the 
number  of  contradicting  witnesses  on  the  other  side,  may  dis- 
pense with  this  requirement,  as  when  the  absent  witness  is  a 
man  of  very  high  character  and  well  known,  and  the  other  wit- 
nesses who  know  the  same  facts  are  Indians  or  negroes,  or  when 
the  absent  witness  is  one  of  several  attesting  witnesses  to  a  paper 
the  execution  of  which  is  disputed,  or  in  matters  of  character. 

(c)  Use  of  due  diligence  to  procure  the  zvitness  or  to  get  his 
evidence.  It  is  generally  sufficient  to  show  that  a  subpoena  was 
issued  for  the  witness  in  due  time  and  has  been  returned  ex- 
ecuted, or,  if  not  returned  executed,  that  it  was  placed  in  the 
hands  of  the  officer  in  ample  time  for  service,  and  that  the  party 
himself  is  in  no  fault.  If  the  materiality  of  the  witness  has  been 
shown,  it  would  be  good  ground  for  a  continuance,  if  the  party 
could  show  that  he  had  made  diligent  search  for  the  witness 
and  had  been  unable  to  find  him,  but  that  there  was  reasonable 
probability  of  being  able  to  have  him  present  at  another  term 
if  the  case  were  continued.9  A  witness  is  not  compellable  to  at- 
tend unless  there  is  paid  or  tendered  to  him  when  summoned, 
if  he  demands  it,  allowance  for  one  day's  attendance  and  his 
mileage.10  A  party  will  not  be  deemed  to  have  exercised  due 
diligence  unless  he  has  paid  or  tendered  to  the  witness  his  mile- 
age and  attendance,  if  demanded  before  trial.11 

8.  Scott  v.  Boyd,  101  Va.  28,  42  S.  E.  918. 

9.  Foushee  v.  Lea,  4  Call  279;  Deford  v.  Hayes,  6  Munf.  390;  B.  & 
O.  R.  Co.  v.  Wightman,  29  Gratt.  431;  Matthews  v.  Warner,  29  Gratt. 
570;  Hewitt  v.  Comth.,  17  Gratt.  627. 

10.  Code,  §  3354.     In  Virginia  the   amount  of  attendance  is  50c  a 
day,  and  the  mileage  is  4c  per  mile  for  each  mile  over  10,  going  and 
coming,  the  same  amount  each  way.     Code,  §  3549. 

11.  The  first  process  to  obtain  the  attendance  of  the  witness  is  a 
subpoena.     When   this   is   executed   the   witness   may   demand   mileage 
and  attendance.     If  the  process   is   returned  duly   executed,   and  the 
witness  fails  to  attend,  the   court  may  award  a  rule  against  him  to 
show  cause  why  he  shall  not  be  fined  and  attached  for  his  contempt. 
This  is  a  proceeding  by  the  court  to  enforce  obedience  to  its  process, 
and  no  mileage  or  attendance  is  required  to  be  tendered.     If  the  wit- 


§    243  CAUSES  FOR  CONTINUANCE  465 

(d)  Reasonable  probability  that  the  witness  can  be  had  at 
another  trial.  Unless  such  reasonable  probability  exists,  there 
will  be  no  reason  for  continuing  the  case  on  account  of  the  ab- 
sence of  the  witness,  as  a  party  would  be  in  no  better  fix  at  the 
next  term,  hence  it  is  always  necessary  to  show  that  it  is  prob- 
able that  the  witness  or  his  evidence  can  be  had  at  the  next  terra. 
If  an  absent  witness  is  a  non-resident,  and  so  not  amenable  to 
the  jurisdiction  of  the  court,  and  especially  if  he  is  in  the  em- 
ployment of  the  applicant  for  the  continuance,  it  is  not  error  to 
refuse  a  continuance  on  account  of  his  absence  after  the  party 
has  had  an  opportunity  to  secure  his  presence.12  In  Virginia, 
if  a  witness  be  more  than  one  hundred  miles  from  the  place  of 
trial,  his  deposition  may  be  taken  and  read  in  an  action  at  law, 
but  the  trial  court  may,  for  good  cause  shown,  compel  his  at- 
tendance in  person.  This  cause  may  be  shown  by  either  party.13 

It  is  not  the  practice  in  Virginia  to  require  the  applicant  to 
state  what  he  expects  to  prove  by  the  absent  witness,  unless  the 
court  doubts  the  motives  of  the  applicant,  and  suspects  that  the 
object  of  the  motion  is  merely  to  obtain  delay.14  In  West  Vir- 
ginia, however,  it  is  expressly  provided  by  statute  that  if  a  mo- 
tion is  made  for  a  continuance  on  the  ground  of  the  absence  of 
a  material  witness,  an  affidavit  must  be  filed,  if  required  by  any 
party  opposing,  setting  forth,  in  addition  to  other  matters  re- 
quired in  order  to  obtain  a  continuance,  the  name  of  the  witness 
and  the  testimony  he  is  expected  to  give,  and  the  affiant  must, 
if  required  by  the  opposing  party,  submit  to  cross-examination 
in  open  court  upon  the  matters  set  forth  in  his  affidavit.15  The 
current  of  authority  elsewhere  seems  to  hold  that  the  court  may, 

ness  fails  to  appear  in  answer  to  the  rule  which  has  been  executed 
upon  him,  then  the  court  may  issue  an  attachment  directing  the 
sheriff  to  arrest  the  witness  and  bring  him  into  court.  This,  too, 
is  a  process  to  enforce  obedience  to  the  court's  order,  and  no 
mileage  or  attendance  is  required  to  be  tendered  to  the  witness. 

12.  Fire  Assn.  v.  Hogwood,  82  Va.  342,  4  S.  E.  617. 

13.  Code.   §   3365. 

14.  Hewitt  T-.  Com.,  17  Gratt.  627;  Harman  r.  Howe,  27  Gratt.  676. 
686-7. 

15.  Code,  W.  Va.,  §  3976. 
-30 


466  CONTINUANCES  §    243 

in  the  first  instance,  require  the  applicant  to  state  what  he  ex- 
pects to  prove  by  the  absent  witness.16 

3.  The  absence  of  papers  necessary  to  a  party's  action  or  de- 
fence stands  on  practically  the  same  footing  as  the  absence  of  a 
witness. 

4.  Surprise.     Surprise  at  the  trial,  without  negligence  on  the 
part  of  the  party  or  his  counsel,  is  a  ground  for  continuance. 
It  has  been  held  that  where  the  wrong  witnesses  were  sum- 
moned by  mistake,  but  the  mistake  was  not  discovered  until 
too  late  to  correct  the  error,  it  was  good  ground  for  a  continu- 
ance, where  the  court  was  satisfied  that  it  was  an  honest  mis- 
take on  the  part  of  the  applicant's  counsel;17  but  where  the  is- 
sue had  been  made  up  in  a  personal  injury  case  at  one  term  of 
the  court,  and  no  bill  of  particulars  of  the  plaintiff's  claim  was 
required  until  the  next  succeeding  term,  the  action  of  the  trial 
court  in  refusing  a  continuance  for  the  defendant  on  the  ground 
of  surprise  at  the  elements  of  damage  claimed  by  the  plaintiff 
was  approved  by  the  Court  of  Appeals,  at  least  it  was  held  that 
the  appellate  court  could  not  say  that  the  action  of  the  trial 
court  was  erroneous.     It  would  seem  in  this  case  that  the  de- 
fendant was  negligent  in  not  having  asked  for  the  bill  of  par- 
ticulars at  an  early  date.18     Parol   stipulations  of  counsel  will 
not  be  regarded  by  the  courts,  but  if  they  work  a  surprise,  it  may 
be  good  ground  for  a  continuance.19 

5.  Absence  of  counsel.     The  absence  of  the  leading  counsel 
in  a  case  by  reason  of  sickness  has  been  held  good  ground  for  a 
continuance,20  and  so  of  the  sole  counsel  where  there  has  not 
been  sufficient  opportunity  to  employ  other  counsel.     Of  course 
the  rule  would  not  apply  in  case  of  the  protracted  illness  of  the 
counsel,  with  no  probability  of  his  being  able  to  be  present.21 
It  has  likewise  been  held  that  a  party  is  entitled  to  a  continu- 

16.  4   Encl.   PI.   &  Pr.   884;   Abbot's  Trial    Brief    25,   32. 

17.  Myers  v.  Trice,  86  Va.  835,  11  S.  E.  428. 

18.  N.   &  W.   Ry.  Co.  v.  Spears,  110  Va.   110,  65  S.   E.  482. 

19.  Spilman  v.  Gilpin,  93  Va.  698,  25  S.  E.  1004;  Collier  v.  Falk,  66 
Ala.  224;  4  Encl.   PI.   &  Pr.   831. 

20.  Myers  v.  Trice,  supra. 

81.  4  Encl.  PI.  &  Pr.  840;  Abbott's  Trial  Brief  17. 


§  243  CAUSES  FOR  CONTINUANCE  467 

ance  by  reason  of  the  absence  of  his  counsel  in  an  adjoining  cir- 
cuit, in  attendance  upon  a  trial  under  a  prior  engagement,  when 
there  was  no  want  of  diligence  on  the  part  of  the  applicant;22 
but  if  the  trial  court  refuses  the  continuance  on  account  of  the 
absence  of  one  of  the  counsel,  and  other  counsel  are  present 
and  conduct  the  case,  the  appellate  court  will  not  for  this  cause 
set  aside  the  judgment,  where  it  does  not  appear  that  there  was 
any  mismanagement  or  mistake  on  the  part  of  the  applicant's 
counsel  who  conducted  the  defence,  nor  that  any  injury  resulted 
to  the  applicant  by  reason  of  the  absence  of  one  of  the  counsel.23 

6.  Absence  of  a  party.    This  is  not  per  se  ground  for  a  contin- 
uance, but  if  he  is  a  witness,  he  stands  as  any  other  witness,  ex- 
cept, perhaps,  it  would  not  be  necessary  to  show  that  he  had  been 
summoned.     If  his  presence  as  a  witness  is  needed,  and  from 
sickness,  or  other  good  cause,  he  is  unable  to  attend,  and  it  ap- 
pears that  he  has  been  diligent  in  the  preparation  of  his  case 
and  expected  to  appear  to  testify,  it  is  good  ground  for  a  con- 
tinuance.24 

7.  Change  in  the  pleadings.    Any  change  which  materially  affects 
the  issue  to  be  tried  and  necessitates  evidence  not  before  required 
would  justify  a    continuance,    otherwise    not.25     If    there    is    a 
variance  at  the  trial  between  the  allegation  and  the  proof,  and 
the  party  is  allowed  to  amend  his  pleadings  to  fit  the  proof, 
it  is  good  ground  for  a  continuance,  if  the  amendment  is  ma- 
terial and  it  would  prejudice  the  other  party  to  be  compelled  to 
go  on  with  the  trial.26 

8.  Failure  to  serve  process.     In  case  of  a  joint  tort  in  those 
jurisdictions  where  a  judgment  against  one  tort  feasor  merges 
a  cause  of  action,  or  of  a  joint  contract  where  the  same  result 
would    follow,    failure   to   serve   process,   without    fault   of   the 
plaintiff,  is  good  cause  for  continuance.     Generally,  where  the 

22.  Rossett   v.   Gardner,   3    W.    Va.   531.      See,   also,   Wise   v.   Com., 
97  Va.  779,  34  S.   E.  453. 

23.  Va.  Iron  Co.  v.  Kiser,  105  Va.  695,  54  S.  E.  889. 

24.  Carter  v.  Wharton,  82  Va.  264;  Abbott's  Trial  Brief  14. 

25.  Travis  v.  Peabody  Ins.  Co.,  28  W.  Va.  583. 

26.  Code,  §  3384. 


468  CONTINUANCES  §§  244-245 

party  has  done  all  that  is  required  of  him  and  the  fault  is  with 
a  public  officer,  there  is  good  ground  for  a  continuance. 

Motions  for  continuances  may  be  supported  by  affidavits  or 
depositions,  or  by  the  examination  of  parties  or  witnesses  in 
open  court,  and  the  motion  may  be  Resisted  by  like  evidence. 
By  professional  courtesy  counsel  are  generally  not  required  to 
be  sworn;  their  verbal  statements  being  accepted  as  if  sworn  to, 
but  this  is  not  obligatory  on  the  opposite  party,  his  counsel,  or 
the  court. 

In  order  to  speed  the  hearing  of  causes  and  prevent  the  trial 
courts  from  continuing  them  on  the  docket  without  good  cause, 
it  is  provided  by  statute  in  Virginia  that  "any  party  asking  the 
court  to  hear  a  case  may,  if  the  court  refuses  to  hear  it,  have 
his  application  spread  upon  the  record  with  a  statement  of  the 
facts  in  relation  thereto."27  This  statute  is  a  dead  letter,  and 
it  is  not  believed  that  any  case  has  ever  arisen  under  it. 

§    244.    Refusing  a  continuance. 

Refusing  a  continuance  when  it  should  have  been  granted  is 
good  ground  for  reversal.  Generally,  a  court  will  refuse  a  con- 
tinuance where  the  opposite  party  will  admit  (not  the  truth  of 
what  the  witness  would  state)  but  that  if  the  absent  witness 
were  present,  he  would  state  what  the  applicant  says  he  can  prove 
by  him,  and  so  it  would  be  refused  if  it  could  be  shown  that  the 
absent  witness  had  no  such  knowledge  as  was  imputed  to  him, 
or  was  not  material,  and  the  like.  But  an  appellate  court  will 
not  reverse  the  ruling  of  the  trial  court  on  a  motion  for  a  con- 
tinuance unless  such  ruling  appears  to  have  been  plainly  wrong 
and  may  have  resulted  in  material  injury  to  the  applicant.28 

§    245.    Cost  of  continuance. 

The  question  of  the  cost  of  continuances  usually  rests  in  the 
discretion  of  the  trial  court,  but  costs  are  generally  awarded 

27.  Code,  §  3380. 

28.  Harman  v.  Howe,  27  Gratt.  676,  Va.  Rep.  Anno.;  Means  v.  Bank 
of  Randall,  146  U.  S.  620;   N.  &  W.  Ry.  Co.  v.  Spears,  110  Va.  110, 
65  S.  E.  482. 


§    245  COST  OF  CONTINUANCE  469 

against  the  applicant  when  the  motion  is  allowed.  If  the  con- 
tinuance is  general,  that  is,  by  consent  of  both  parties,  the  costs 
abide  the  final  determination  of  the  cause,  and  are  given  in 
favor  of  the  party  in  whose  behalf  the  judgment  is  rendered. 
In  Virginia  the  cost  of  continuances  is  placed  largely  in  the  dis- 
cretion of  the  trial  court.29 

29.  Code,  §  3541. 


CHAPTER  XXXII. 
JURIES. 

§  246.  Who  are  competent  to  serve. 
§  247.  Qualifications  of  jurors. 

Selection  of  jurors. 
§  248.  Objections  to  jurors. 

Challenges. 
§  249.  Special  juries. 
§  250.  Oath  of  jurors. 
§  251.  Trial  by  jury. 
§  252.  Custody  and  deliberations  of  the  jury. 

Disagreement  of  tfte  jury. 
§  853.   Misconduct  of  jurors. 

§  246.    Who  are  competent  to  serve. 

This  is,  of  course,  purely  statutory.  In  Virginia  all  male  citi- 
zens over  twenty-one  years  of  age,  who  have  resided  in  the  state 
two  years,  and  in  the  county,  city  or  town  in  which  they  reside 
one  year  next  preceding  their  being  summoned  to  serve,  and 
who  are  in  other  respects  competent,  are  qualified  to  serve  as 
jurors,  except:  (1)  Idiots  and  lunatics;  (2)  persons  con- 
victed of  bribery,  perjury,  embezzlement  of  public  funds,  trea- 
son, felony,  or  petit  larceny.  No  male  person,  however,  over 
sixty  years  of  age  can  be  compelled  to  serve  as  a  juror.  Of 
those  competent  to  serve,  many  are  for  various  reasons  exempt 
from  service  if  they  choose  to  rely  upon  the  exemption.1  All 
persons  while  actually  engaged  in  harvesting,  or  securing  grain 
or  hay,  or  in  cutting  or  securing  tobacco,  are  exempt  from  serv- 
ice, so  also  are  licensed  undertakers.  Officers,  soldiers,  sea- 
men, and  marines  are  not  considered  residents  for  the  purpose 
of  jury  service  merely  because  stationed  in  the  state.2  The  right 
"to  vote  and  hold  office"  is  no  longer  a  test  of  qualification. 

§  247.    Qualifications  of  jurors. 
Jurors  must  be  physically  able  to  see,  and  to  hear  and  com- 

1.  Code,  §  3140. 

2.  Code,  §§  3139,  3140,  3140a,  3141. 


§    248  OBJECTIONS    TO    JURORS  471 

prebend  the  evidence  and  the  instructions,  and  must  be  disinter- 
ested. In  an  action  to  which  a  corporation  is  a  party,  a  juror 
who  has  shown  on  his  voir  dire  that  he  is  in  other  respects  qual- 
ified cannot  be  asked  whether  he  is  prejudiced  against  corpora- 
tions.3 While  a  juror  is  not  competent  to  sit  in  a  case  in  which 
he  has  any  interest,  or  is  related  to  either /party,  or  has  formed 
or  expressed  any  opinion,  or  is  sensible  of  any  bias  or  prej- 
udice, the  mere  fact  that  he  is  indebted  to  one  of  the  parties 
does  not  render  him  incompetent  to  sit,  nor  does  the  fact  that 
one  of  the  parties  to  the  case  being  tried  is  the  family  physician 
of  the  juror  render  him  incompetent  to  sit,  where  it  appears 
from  his  statement  on  his  voir  dire  that  the  relationship  will  not 
influence  his  verdict.4  It  is  provided  by  statute  in  Virginia  that 
the  court  shall,  on  motion  of  either  party  to  a  suit,  examine  a 
juror  when  called  to  ascertain  whether  any  of  the  above  ob- 
jections do  exist.5  In  Virginia,  a  person  who  has  any  con- 
troversy which  has  been  or  is  expected  to  be  tried  at  a  term  of 
the  court  is  incompetent  to  serve  as  a  juror  at  that  term.6 

Selection  of  jurors. — Those  who  are  to  serve  as  jurors  for  the 
year  are  required  to  be  selected  annually  between  January  1  and 
July  1  by  the  judge  of  the  Circuit  or  City  Court,  as  the  case  may  be. 
The  names  are  written  on  slips,  folded  and  put  into  a  box  provided 
for  the  purpose,  and  are  drawn  out  under  the  direction  of  the 
court,  or  judge  from  time  to  time  during  the  year  as  their  serv- 
ices are  needed.  The  writ  used  for  summoning  a  jury  is  called 
a  venire  facia-s,  and  the  jury  itself  is  often  spoken  of  as  the 
rcnlrc.  If  a  sufficient  number  qualified  to  serve  do  not  attend, 
or  for  any  cause  there  is  a  deficiency  of  qualified  jurors  others 
of  like  qualifications  (talesmen}  may  be  obtained  by  another 
rcnire  facias. 

§  248.    Objections  to  jurors. 

Xo  exception  to  any  juror  on  account  of  his  age  or  other 

3.  Atlantic  &  D.  R.  Co.  r.  Reiger,  95  Va.  418.  28  S.  E.  590. 

4.  Richardson  r.  Planters'  Bank,  94  Va.  130.  26  S.  E.  413;  Ches.  & 
O.  Ry.  Co.  r.  Smith.  103  Va.  326,  49  S.  E.  487. 

5.  Code,  §  3154. 

6.  Code.  §  3165. 


472  JURIES  §  248 

legal  disability  will  be  allowed  after  he  is  sworn,  except  by  leave 
of  the  court,  though  the  exception  would  have  been  good  if  made 
in  time.7  Exceptions  to  competency  of  jurors  should  be  made 
before  they  are  sworn.8  The  grounds  of  disqualification,  such 
as  -prejudice,  relationship,  etc.,  may  be  disclosed  by  examining 
the  juror  on  his  voir  dire  (a  special  oath  administered  to  the 
juror  to  make  true  answer  to  such  questions  as  shall  be  pro- 
pounded to  him),  or  it  may  be  shown  by  extraneous  evidence.9 
The  objection  comes  too  late  after  the  juror  is  sworn,  except  by 
leave  of  the  court,  and  is  certainly  too  late  after  verdict,  save 
in  very  exceptional  cases.  It  is  provided  in  Virginia  that  no 
irregularity  in  any  writ  of  venire  facias,  or  in  the  drawing,  sum- 
moning, returning  or  empanelling  of  the  jurors  shall  be  suf- 
ficient to  set  aside  a  verdict  unless  the  party  making  the  ob- 
jection was  injured  by  the  irregularity,  or  the  objection  was 
made  before  swearing  the  jury.10  Writs  of  venire  facias,  how- 
ever, are  not  properly  parts  of  the  record  unless  made  so  by  a 
bill  of  exception,  or  otherwise.11 

Challenges. — Challenges  of  jurors  may  be  (1)  peremptory  or 
(2)  for  cause,  and  the  latter  may  be  (a)  a  principal  challenge; 
that  is,  for  a  cause  which  per  se  (as  a  matter  of  law)  disqual- 
ifies, or  (b)  to  the  favor;  that  is,  which  raises  some  question 
of  fact  which  may  or  may  not  disqualify ;  e.  g.,  bias,  prejudice, 
etc.  The  following  are  held  good  grounds  for  challenging: 
Bias,  prejudice,  relationship,  interest,  dependence,  formation  of 
decided  opinions,  and  the  like.  The  interest  which  will  dis- 
qualify must  be  in  the  results  of  the  particular  case,  and  not 
merely  in  the  legal  questions  involved.  Relationship  at  common 
law  must  be  within  the  ninth  degree,  counting  from  the  juror 
back  to  a  common  ancestor,  and  then  down  to  the  party,  reck- 
oning one  for  each  except  the  common  ancestor.  The  relation- 

7.  Code,  §  3155;  Hile  v.  Com.,  96  Va.  489,  31  S.  E.  895;  Suffolk  v. 
Parker,  79  Va.  660. 

8.  Parsons  v.  Harper,  16  Gratt.  64;  Code,  §  3156. 

9.  Code,  §  3154. 

10.  Code,  §  3156;  Charlottesville  v.   Failes,   103  Va.  53,  48   S.   E.  511. 

11.  Spurgeon's  Case,  86  Va.  652,  10  S.  E.  979;  Jones'  Case,  100  Va. 
842,  848,  41  S.  E.  951. 


§§  249-250  OATH  OF  JURORS  473 

ship  may  be  by  consanguinity  or  affinity.12  Citizens  of  a  county 
or  town  cannot  serve  in  a  case  where  the  county  or  town  is  in- 
terested, nor  stockholders  where  the  corporation  is  interested. 
Jurors  in  Virginia  are  not  generally  interrogated  as  to  their  qual- 
ifications except  upon  application  therefor,  or  suggestion  of  dis- 
qualification;  but  the  rule  is  otherwise  in  many  states.  Where 
the  jury  is  to  contain  seven,  plaintiff  and  defendant  are  each  en- 
titled to  one  peremptory  challenge,13  that  is  to  strike  off  one 
without  assigning  any  reason  therefor. 

§    249.    Special  juries. 

A  special  jury  may  be  allowed  by  any  court.  The  court  di- 
rects such  jurors  to  be  summoned  as  it  shall  designate  for  the 
purpose,  and  from  those  summoned  a  panel  of  twenty  qualified 
jurors  is  made,  from  which  sixteen  are  drawn  by  lot.  Then 
the  plaintiff  and  defendant,  or  their  counsel,  alternately  (begin- 
ning with  the  plaintiff)  strike  off  one  until  the  number  is  re- 
duced to  twelve,  who  shall  compose  the  jury  for  the  trial  of  the 
cause.14  If  parties  or  their  counsel  fail  or  refuse  to  strike  the 
required  number  from  the  sixteen  to  reduce  it  to  twelve,  the 
jury  of  twelve  is  obtained  from  the  sixteen  by  lot.15  The  stat- 
ute provides  for  the  sixteen  to  be  chosen  from  the  panel  of 
twenty  by  lot,  but,  if  from  the  panel  of  twenty,  four  are  drawn 
out  by  lot,  this  makes  the  sixteen  selected  by  lot,  and  is  a  com- 
pliance with  the  statute.16  * 

§  250.    Oath  of  jurors. 

Where  an  issue,  or  issues,  have  been  made  in  a  civil  case,  the 
jury  are  sworn  to  well  and  truly  try  the  issue,  or  issues,  joined 
between  the  plaintiff  and  the  defendant,  and  a  true  verdict 
render  according  to  the  evidence.  If  no  issues  have  been  made, 
and  the  jury  are  simply  executing  a  writ  of  inquiry,  the  oath 

12.  Doyle  v.  Com.,  100  Va.  808,  40  S.  E.  925. 

13.  Code,  §  3154. 

14.  Code,  §  3158. 

15.  Code,  §  3158. 

16.  Duke  r.  N.  &  W.  Ry.  Co.,  106  Va.  152,  55  S.  E.  548. 


474  JURIES  §  251 

administered  is  that  they  will  diligently  inquire  of  the  damages 
sustained  by  the  plaintiff  by  reason  of  the  matters  and  things 
in  the  declaration  mentioned.  It  sometimes  happens  that  a  jury 
is  sworn  to  try  the  issue,  or  issues,  when  in  fact  no  issue  has 
been  joined,  usually  in  consequence  of  oversight  on  the  part  of 
one  of  the  parties  to  join  issue  on  some  pleading  that  has  been 
filed.  It  has  already  been  pointed  out17  that  the  verdict  of  the 
jury  in  such  case  will  not  be  set  aside  if  the  court  can  see  that 
no  injury  could  have  resulted  from  the  omission  to  take  issue 
on  a  pleading.  It  is  there  stated  that  "the  disposition  of  the 
courts  in  modern  cases  is  to  disregard  mere  technical  objections 
which  have  occasioned  no  injury,  and,  where  they  can  see  that 
no  injury  has  resulted  to  a  party  from  the  omission  to  join  is- 
sue on  a  pleading,  they  will  disregard  the  defect,  and  proceed  to 
judgment  on  the  merits  of  the  case.  Under  such  circumstances 
they  hold  the  party  to  be  estopped  from  setting  up  the  technical 
objection  of  the  want  of  issue  for  the  first  time  in  the  appellate 
court."  The  same  rule,  for  a  like  reason,  should  be  applied  in 
the  trial  court  as  in  the  appellate  court  when  the  objection  is 
raised  for  the  first  time  after  verdict. 

§    251.    Trial  by  jury. 

The  constitution  of  Virginia18  provides  that  "in  controver- 
sies respecting  property  and  in  suits  between  man  and  man, 
trial  by  jury  is  preferable  to  any  other  and  ought  to  be  held 
sacred."  This  is  regarded  as  mandatory,  but  is  not  applicable 
to  that  class  of  cases  where  no  jury  was  allowed  at  the  time  the 
provision  was  first  adopted.19  The  constitution  preserves  the 
right  of  jury  trial  where  it  existed  when  the  constitution  was 
first  adopted,  but  does  not  confer  it  in  any  case  not  expressly 
mentioned,  and  hence  the  right  to  demur  to  the  evidence,  as  here- 
inafter pointed  out,20  has  not  been  taken  away.21  The  pro- 

17.  Ante,  §  207. 

18.  Va.  Constitution,  1902,  §  11. 

19.  Pillow  v.  Southwest  Va.  Imp.  Co..  92  Va.  144,  23  S.  E.  32. 

20.  Post,   §   256. 

21.  Reed  &  McCormick  v.  Gold,  102  Va.  37,  45  S.  E.  868;  Lynchburg 
Milling  Co.  v.  Bank,  109  Va.  639,  64  S.  E.  980;  Meade  ?.-.  Meade,  111 
Va.  451,  69   S.   E.  330. 


§    252  CUSTODY  AND  DELIBERATIONS  OF  THE  JURY  475 

vision  of  Amendment  VII  to  the  Constitution  of  the  United 
States  which  grants  a  trial  by  jury  "in  suits  at  common  law"  in- 
volving over  $20  applies  only  to  the  federal  courts. 

A  common  law  jury  was  a  jury  of  twelve,  but  by  the  Vir- 
ginia constitution22  you  may  have  a  jury  of  not  less  than  seven 
in  cases  not  cognizable  by  a  justice  of  the  peace  at  the  time  the 
constitution  was  proclaimed,  or  not  less  than  five  in  cases  so 
cognizable.  Provision  is  also  made  for  a  jury  of  three,  by  con- 
sent of  parties  entered  of  record,  each  party  to  select  one,  and 
they  to  select  the  third,  and  it  is  provided  that  any  two  con- 
curring shall  render  a  verdict  in  like  manner  and  with  like  effect 
as  a  jury  of  seven.  The  jurors  so  selected  are  required  to  be 
persons  who  are  eligible  as  jurors.23 

It  is  also  provided  by  statute  in  Virginia  :24  "In  any  case, 
unless  one" of  the  parties  demand  that  the  case  be  tried  by  a  jury, 
the  whole  matter  of  law  and  fact  may  be  heard  and  determined 
and  judgment  given  by  the  court ;"  and  a  similar  provision  is 
made  as  to  proceedings  by  motion.25  It  will  be  observed  that 
the  court  is  to  try  the  case  unless  a  jury  is  demanded,  but  if 
either  party  demands  it,  he  is  entitled  to  it. 

§    252.    Custody  and  deliberations  of  the  jury. 

Jurors  are  not  generally  required  to  be  kept  together  in  civil 
cases,  though  for  good  cause  the  court  might  probably  require 
it.  During  the  progress  of  the  trial  they  may  be  adjourned 
from  time  to  time  in  the  discretion  of  the  court,  but  always 
with  the  admonition  that  they  are  not  to  speak  to  any  one,  nor 
permit  any  one  to  speak  to  them  on  the  subject  of  the  case  they 
are  considering.  A  violation  of  this  admonition  would  be  a 
contempt  of  court,  and,  if  the  conversation  were  with  a  party 
to  the  litigation  touching  the  subject  of  the  controversy,  would 
generally  be  good  ground  for  a  new  trial.  It  is  provided  by 
statute  in  Virginia  that  papers  read  in  evidence,  though  not  un- 

22.  Va.  Constitution,  1902,  §  11. 

23.  Code,  §  3166. 

24.  Code,  §  3166. 

25.  Code.  §  3213. 


476  JURIES  §  252' 

der  seal,  may  be  carried  from  the  bar  by  the  jury,26  and  it  has 
been  held  that  a  deposition  which  has  been  read  to  the  jury  may 
be  taken  with  them  in  their  retirement,  if  what  is  objection- 
able in  it  has  been  erased.27  A  similar  statute  exists  in  West 
Virginia,  declaring  that  "depositions  or  other  papers  read  in 
evidence,  may,  by  leave  of  the  court,  be  carried  from  the  bar 
by  the  jury."28  It  has  been  held,  however,  under  this  section, 
that  depositions  read  in  a  trial  at  law  by  a  jury  cannot  be  car- 
ried out  by  the  jury  to  be  considered  when  deliberating  on  the 
case,  except  by  leave  of  the  court.29  It  was  formerly  held  that 
the  jury  could  take  with  them  only  such  evidence  as  was  under 
seal,  but  it  is  now  generally  held  that  all  papers  and  documents 
given  in  evidence  may  properly  be  allowed  to  go  to  the  jury, 
except  that  in  some  jurisdictions  the  depositions  of  witnesses  are 
excluded,  though  it  would  seem  that,  even  as  to  depositions, 
in  the  absence  of  statute,  the  question  rests  largely  in  the  dis- 
cretion of  the  trial  court.30 

Disagreement  of  the  jury.  Formerly,  when  the  jury  re- 
turned into  court  and  reported  their  inability  to  agree,  one 
of  the  jurors  was  withdrawn  by  consent  of  the  parties 
and  thereby  the  panel  was  broken,  and  the  rest  of  the 
jury  from  rendering  a  verdict  were  discharged,  which,  of 
course,  operated  a  continuance  of  the  case.  If  the  parties 
refused  to  consent  to  the  withdrawal  of  a  juror,  the  jury  was 
adjourned  from  day  to  day  until  they  agreed,  or  until  the  par- 
ties consented  to  withdraw  a  juror,  or  until  the  end  of  the  term,, 
when  the  jury  was  discharged  of  necessity.31  The  entry  made 
upon  withdrawal  of  a  juror  was:  "A.  B.,  one  of  the  jurors,  is, 
by  consent  of  the  parties  and  for  reasons  appearing  to  the  court, 
ordered  to  be  withdrawn,  and  the  rest  of  the  jury  from  giving 
their  verdict  are  discharged."  This  practice  is  still  sometimes 
observed  where  consent  to  withdrawal  is  given,  but  the  better 
practice  would  seem  to  be  simply  to  discharge  the  jury  when 

26.  Code,  §  3388. 

27.  Hansbrough  v.  Stinnett,  25  Gratt.  495. 

28.  W.  Va.  Code,  §  3982. 

29.  Graham  v.  Cit.  Nat.  Bank,  45  W.  Va.  701,  32  S.  E.  245. 

30.  12  Encl.  PI.  &  Pr.  590,  ff. 

31.  1  Rob.  Pr.   (old)  354. 


§    252  CUSTODY  AND  DELIBERATIONS  OF  THE  JURY  477 

they  were  unable  to  agree  without  going  through  the  outworn 
formality  of  withdrawing  a  juror.  Indeed,  the  court  has  said 
that  it  is  improper  for  a  trial  court  to  make  threats  of  keeping 
a  jury  until  the  end  of  the  term,  or  to  use  any  species  of  coer- 
cion to  force  a  verdict,  and  that  it  is  the  safer  and  better  prac- 
tice to  refrain  from  any  expression  of  opinion  which  may  be 
claimed  to  savor  of  threat  or  coercion  as  to  the  time  the  jury 
will  be  kept  together  if  a  verdict  is  not  sooner  rendered.32 
Sometimes  a  party  may,  without  fault  on  his  part,  be  taken  by 
surprise  in  the  midst  of  a  trial,  under  such  circumstances  as 
that  to  compel  him  to  proceed  further  with  the  trial  would  be 
a  manifest  injustice,  and  do.  him  serious  or  irreparable  wrong. 
When  the  plaintiff  finds  himself  in  this  position,  it  is  always  per- 
missible to  him,  at  any  time  before  the  jury  retire  to  consider 
of  their  verdict,  to  suffer  a  non-suit,  and  so  prevent  the  injury 
which  he  would  otherwise  sustain.  Such  non-suit  does  not  pre- 
vent a  new  suit  for  the  same  cause  of  action.  If,  however,  by 
compelling  him  to  institute  a  new  action,  his  claim  would  be 
barred  by  the  statute  of  limitations,  the  court  may  for  good  cause 
reinstate  the  action  after  the  non-suit  and  thus  preserve  the 
continuity  of  his  original  action.  The  defendant,  however,  does 
not  occupy  so  advantageous  a  position.  He  cannot  suffer  a  non- 
suit, but  if  the  case  is  one  of  genuine  surprise,  without  fault 
on  his  part,  and  presents  a  situation  where  it  would  be  unjust 
and  unfair  to  compel  him  to  proceed  with  the  trial,  it  would 
seem  that  the  trial  court  is  invested  with  discretion  to  discharge 
the  jury  and  continue  the  case  until  another  term.  There  is  no 
direct  decision  in  Virginia  to  this  effect,  but  it  has  been  held 
that  if  a  party,  pending  the  trial,  discovers  an  important  witness 
that  he  did  not  know  of  before,  and  is  without  negligence  in 
the  premises,  he  should  bring  the  matter  promptly  to  the  atten- 
tion of  the  trial  court,  and  ask  to  have  the  case  delayed  until 
the  attendance  of  the  witness  can  be  procured,  and  that,  failing 
to  do  this,  he  cannot  make  a  motion  after  verdict  for  a  new 
trial  on  the  ground  of  after-discovered  evidence.  The  reason- 
ing of  these  cases  leads  to  the  conclusion  that,  if  it  is  a  case  of 
genuine  accident  or  surprise  which  would  work  injustice  to  the 

32.  Buntin  v.  Danville,  93  Va.  200,  24  S.  E.  830. 


478  JURIES  §  253 

defendant  to  compel  him  to  proceed  with  the  trial,  the  trial  court 
may  dismiss  the  jury,  and  continue  the  case  to  another  term.33 

§  253.    Misconduct  of  jurors. 

The  subject  of  the  misconduct  of  jurors  generally  arises  on 
motions  for  new  trial,  and  the  discussion  of  it  is  postponed  till 
the  consideration  of  that  subject. 

33.  Norfolk  v.  Johnakin,  94  Va.  285,  290,  26  S.  E.  830;  Jones  v. 
Martinsville,  111  Va.  103,  68  S.  E.  265.  The  origin  of  withdrawing  a 
juror  is  given  in  Lancton  v.  State,  14  Ga.  426,  as  quoted  in  21  Encl. 
PI.  &  Pr.  1004,  as  follows: 

"There  is  but  little  satisfactory  information  to  be  obtained  from 
the  books  in  regard  to  the  ancient  practice,  which  used  to  be  resorted 
to  when  a  party  was  taken  by  surprise  on  a  trial,  of  withdrawing  a 
juror,  and  thus  causing  a  mistrial,  and,  of  necessity,  a  postponement 
of  the  case.  It  was  originally  confined  to  criminal  cases,  and  seems 
to  have  been  adopted  for  the  purpose  of  avoiding  a  rule  which  once 
obtained,  based  largely  upon  a  dictum  of  Lord  Coke,  that  a  jury 
sworn  and  charged  in  any  criminal  case  could  not  be  discharged 
without  giving  a  verdict.  To  escape  the  effect  of  this  rule,  and  yet 
apparently  observe  it  to  the  letter,  the  courts  resorted  to  the  fiction 
of  directing  the  clerk  to  call  a  juror  out  of  the  box  when  it  appeared 
that  the  prosecution  was  taken  by  surprise  on  the  trial,  whereupon 
the  prosecution  objected  or  was  supposed  to  object  to  proceeding 
with  the  eleven  jurors,  and  the  trial  went  over  for  the  term;  2  Hawk. 
P.  C.  619;  2  Hale  P.  C.  294;  Wedderburn's  Case,  Foster  22;  People 
v.  Olcott,  2  Johns.  Cas.  (N.  Y.)  301;  U.  S.  v.  Coolidge,  2  Gall.  (U.  S.) 
364,  25  Fed.  Gas.  No.  14,858.  It  was  nothing  more,  however,  than 
a  means  of  obtaining  a  continuance  or  postponement  of  the  trial 
after  the  jury  had  been  impaneled  and  sworn.  Usborne  v.  Stephen- 
son,  36  Oregon  328." 

It  is  now  provided  by  statute  in  Virginia  (Code,  §  4026)  that,  in  a 
criminal  case,  "the  court  may  discharge  the  jury,  when  it  appears 
that  they  cannot  agree  in  a  verdict,  or  that  there  is  a  manifest  neces- 
sity for  such  discharge." 


CHAPTER  XXXIII. 
OPENING  STATEMENT  OF  COUNSEL. 

§  254.  Nature  of  statement. 
§  255.  Order    of    statement. 

§    254.    Nature  of  statement. 

Immediately  after  the  jury  is  sworn,  counsel  are  expected 
to  state  the  case  to  the  jury,  so  that  they  may  know  at  this  early 
stage  the  questions  to  be  decided  by  them,  and  make  an  intel- 
ligent application  of  the  evidence  as  it  is  adduced.  This  is  called 
the  opening  statement  of  counsel.1 

It  should  be  a  clear,  concise,  and  brief  statement  of  what  the 
parties  expect  to  prove.  It  should  not  be  an  argument.  Gen- 
erally a  chronological  order  of  events  will  be  the  most  readily 
understood  and  borne  in  mind  by  the  jury,  but  the  facts  of  some 
cases  are  too  complex  to  render  this  order  practicable.  In  any 
event,  that  statement  should  "be  clear  and  clean-cut."  Counsel 
should  have  every  fact  readily  at  command,  and  definitely  fixed 
in  his  mind,  and  so  present  his  facts  that  the  jury  may  see  the 
case  as  he  does, — from  his  standpoint,  through  his  glasses. 
Defences,  so  far  as  known,  should  be  stated  by  anticipation,  and 
the  replies  thereto  plainly  and  clearly  set  forth.  Legal  prop- 
ositions or  contentions,  and  the  application  of  the  facts  thereto 
should  also  be  stated,  but  the  statement  should  not  be  expanded 
into  an  argument.  Too  much  emphasis  cannot  be  laid  on  the  im- 
portance of  a  proper  opening  statement.  Minor  or  doubtful 
points  should  not  be  given  too  much  prominence,  but  the  strong 
points  should  be  so  put  as  to  carry  conviction  to  the  minds  of 
the  court  and  jury,  if  possible.  To  impress  the  jury  in  the  first 
instance,  and  put  your  adversary  on  the  defensive  from  the  start, 
is  the  desideratum. 

1.  Such  a  statement  is  now  allowed  in  criminal  cases  also,  but  is 
not  compulsory.  Code,  §  4029a;  Johnson  v.  Com..  Ill  Va.  877,  69  S. 
E.  1104. 


480  OPENING  STATEMENT  OF  COUNSEL  §   255 

§    255.    Order  of  statement. 

In  Virginia  the  practice  is  for  the  counsel  for  the  plaintiff 
(or  the  party  having  the  burden  of  proof)  to  make  his  state- 
ment first,  and  immediately  thereafter  the  defendant's  counsel 
makes  his  statement.  As  a  rule,  no  counter  statement  from  the 
plaintiff  is  allowed,  but  this  is  in  the  discretion  of  the  trial  court, 
and  will  be  allowed  to  prevent  surprise,  or  to  aid  the  court  or 
jury  in  a  clear  understanding  of  the  evidence.  Immediately 
after  these  statements,  the  introduction  of  evidence  begins,  and 
it  is  introduced  in  the  same  order  as  the  opening  statements. 
In  many  of  the  states  the  plaintiff's  counsel  makes  his  statement 
and  follows  it  with  his  evidence,  and  then  the  defendant's  coun- 
sel makes  his  statement  and  follows  it  with  his  evidence.  Of 
course,  these  statements  are  not  evidence,  except,  perhaps,  by 
way  of  admissions. 


CHAPTER  XXXIV. 
DEMURRER  TO  EVIDENCE. 

§  256.  Nature  of  demurrer  to  evidence. 

§  257.  Form  and  requisites  of  demurrer  and  joinder. 

§  258.  Right  to  demur. 

§  259.  Effect   of  demurrer  to   evidence. 

§  260.  Joinder  in  demurrer. 

§  261.  Concessions  on  demurrer  to  the  evidence. 

§  262.  Procedure  on  demurrer  to  the  evidence. 

§  263.  Rule  of  decision. 

§  264.  Exceptions   to   rulings   and  writ   of   error. 

§    256.    Nature  of  demurrer  to  evidence. 

A  demurrer  to  the  evidence  is  not  a  mere  statement.  It  is  a 
pleading,  and,  upon  being  filed,  is  as  much  a  part  of  the  record 
as  any  other  pleading,  and  no  bill  of  exception  is  necessary  to 
make  it  a  part  of  the  record.1  If,  however,  such  a  bill  is  filed, 
it  does  not  affect  the  demurrer.2  Like  all  other  pleadings,  it 
should  be  signed  by  counsel.  The  omission  of  the  names  of 
counsel,  however,  may  be  supplied  at  any  time  when  the  atten- 
tion of  the  court  is  called  to  it,3  and  if  it  appears  from  the  record 
that  the  opposite  party  joined  in  the  demurrer,  and  that  the  case 
was  heard  and  decided  upon  such  a  demurrer  in  the  trial  court 
the  record  will  be  deemed  complete  in  this  respect  although  the 
demurrer  and  joinder  are  not  signed  by  counsel  at  all.4  A  de- 
murrer to  a  pleading,  in  effect,  says  that  the  opposite  party  has 
not  stated  any  ground  of  action  or  defence  (as  the  case  may  be) 
while  a  demurrer  to  the  evidence  in  effect  says  that  the  opposite 
party  has  not  proved  his  ground  of  action  or  defence.  It  is  thus 
seen  that  the  former  goes  to  the  statement  of  the  case,  and  the 
latter  to  the  proof  to  sustain  it.  The  very  terms  of  the  demurrer 

1.  Manderville  v.  Perry,  6  Call  78;  Ches.  &  O.  Ry.  Co.  v.  Sparrow, 
98   Va.   630,   37   S.    E.   302. 

2.  Ches.  &  O.  Ry.  Co.  v.  Pierce,  103  Va.  99,  48  S.  E.  534. 

3.  Mclntyre  v.  Smith,  108  Va.  736,  62  S.  E.  930. 

4.  Ches.  &  O.  Ry.  Co.  v.  Sparrow,  98  Va.  630,  37  S.  E.  302. 
—31 


482  DEMURRKR   TO    EVIDENCE  §    256 

to  the  evidence  show  its  functions.  It  says  that  the  matters 
shown  in  evidence  are  not  sufficient  in  law  to  maintain  the  issue 
joined  on  behalf  of  the  party  offering  it. 

This  method  of  procedure,  it  is  said,  has  been  expressly  recog- 
nized and  allowed  in  nineteen  of  the  States.  In  the  other  States, 
the  courts  direct  non-suits  or  order  verdicts,  and  thereby,  in 
effect,  accomplish  the  same  results.5  The  right  to  demur  to  evi- 
dence existed  at  common  law  and  has  not  been  taken  away  by 
constitutional  provisions  for  trials  by  jury  in  civil  cases.  It  ex- 
isted before  the  constitutions  of  the  several  States  were  adopted 
and  was  not  meant  to  be  taken  away  by  them.0  The  constitu- 
tions preserved  the  right  of  jury  trial  where  it  then  existed,  but 
did  not  confer  it  in  any  case  not  expressly  mentioned. 

If  evidence  is  relevant  to  the  issue,  although  entitled  to  but 
little  weight,  it  is  generally  admissible,  and  a  motion  to  reject 
when  offered,  or  to  strike  it  out  after  it  has  been  received,  is  in- 
applicable. //  relevant,  but  not  deemed  sufficient  to  maintain 
the  issue  joined,  the  opposing  party  should  demur  and  not  move 
to  strike  out.  Such,  at  least,  is  the  Virginia  doctrine,  which 
holds  that  a  motion  to  strike  out  is  not  equivalent  to  a  demurrer 
to  the  evidence.7  A  somewhat  different  rule,  however,  seems 
to  prevail  in  West  Virginia  where  it  is  held  that  a  motion  to  ex- 
clude the  evidence  of  the  opposing  party  is  equivalent  to  a  de- 
murrer to  such  evidence,  at  least,  as  to  the  rule  of  construing  it.8 

The  right  to  demur  to  the  evidence  on  the  trial  of  an  issue 
devisavit  vel  non  under  §  2544  of  the  Code  exists  as  well  as 
upon  the  trial  of  common  law  actions,  and  the  demurrer  to  the 
evidence  in  such  cases  is  not  an  invasion  of  the  province  of  the 
jury  in  the  trial  of  such  issues.  The  jury  are  not  the  judges  of 
the  law  in  such  cases,  and  the  language  of  the  statute  "a  trial 

5.  Hopkins  v.  Nashville,  etc.,  Ry.  Co.,  96  Tenn.  409,  34  S.  W.  1029, 
32  L.  R.  A.  354. 

6.  Reed  &  McCormick  v.  Gold,  102  Va.  37,  45  S.  E.  868;  Lynchburg- 
Milling  Co.  v.  Bank,  109  Va.  639,  64  S.  E.  980. 

7.  Southern  Ry.  Co.  v.  Cooper,  98  Va.  299,  36  S.  E.  388. 

8.  Johnson  v.  Balto.  &  O.  Ry.  Co.,  25  W.  Va.  570.     As'  to  when  it 
is  proper  to  allow  such  a  motion,  see  Carrico  v.  W.  Va.  Ry.  Co.,  35 
W.  Va.  389,  14  S.  E.  12. 


§    257      FORM  AND  REQUISITES  OF  DEMURRER  AND  JOINDER  483 

by  jury  shall  be  ordered"  only  means  a  jury  trial  accompanied 
by  all  the  incidents  and  the  mode  of  procedure  attendant  upon 
such  a  proceeding.  The  word  "shall"  in  the  sentence  above  quoted 
does  not  prevent  a  waiver  of  trial  by  jury,  but  is  to  be  construed 
in  the  sense  of  "may."9 

§    257.    Form  and  requisites  of  demurrer  and  joinder, 

"The  original  practice  was  to  require  the  demurrant  to  admit 
upon  the  record  the  existence  of  all  facts  which  the  evidence  of- 
fered by  the  other  party  conduced  to  prove.  Those  facts  were 
to  be  ascertained  by  the  court;  and  in  this  respect,  the  court 
might  err  in  opinion ;  and  if  so,  and  the  party  refused  to  make  the 
admission,  he  lost  the  benefit  of  his  demurrer,  or,  if  he  made  the 
admission  on  record,  it  bound  him  irrevocably.  In  the  latter 
case,  the  error  of  the  court  could  never  be  corrected ;  and  in  the 
former,  not  without  a  protracted  litigation  attended  with  great 
delay  and  expense,  to  wit:  by  bill  of  exception  and  appeal.  To 
avoid  this  inconvenience,  the  modern  practice  is  (especially  in 
Virginia,  where  it  has  been  sanctioned  by  repeated  decisions  of 
the  court  of  appeals)  to  put  all  the  evidence  on  both  sides  in  the 
demurrer,  and  then  to  consider  the  demurrer  as  if  the  demurrant 
had  admitted  all  that  could  reasonably  be  inferred  by  a  jury 
from  the  evidence  given  by  the  other  party,  and  waived  all  the 
evidence  on  his  part  which  contradicts  that  offered  by  the  other 
party,  or  the  credit  of  which  is  impeached,  and  all  inferences 
from  his  own  evidence  which  do  not  necessarily  flow  from  it. 
With  these  limitations,  the  party  whose  evidence  is  demurred  to 
has  all  the  benefit  which  the  ancient  practice  was  intended  to 
give  him,  without  subjecting  the  other  party  to  its  inconveniences; 
and  no  disputed  fact  is  taken  from  the  jury  and  referred  to  the 
court.  Green,  J.,  in  Whittington  v.  Christian,  2  Rand.  357,  with 
which  opinion  the  decision  of  the  court  accorded.  See  also, 
Roane,  J.,  in  Stephens  v.  White,  2  Wash.  210;  and  Coalter,  J., 
in  Taliaferro  v.  Gatewood,  6  Munf.  326."10  It  has  been  ear- 
nestly contended  that  the  recent  Virginia  act  on  demurrers  to 
evidence,  requiring  the  demurrant  to  "state  in  writing  specific- 

9.  Meade  v.  Meade,  111  Va.  451,  69  S.  E.  330. 
10.  1  Rob  Pr.   (old)  351. 


484  DEMURRER   TO    EVIDENCE  §    257 

ally  the  grounds  of  demurrer  relied  on,"11  was  a  return  to  the 
"original  practice"  above  mentioned,12  but  the  contention  does 
not  seem  to  be  sustained  either  by  the  language  of  the  Act,  or 
the  history  of  its  enactment.13  The  Act  seems  to  place  demur- 
rers to  evidence  on  the  same  footing  with  demurrers  to  plead- 
ings. It  does  not  require  the  demurrant  to  admit  upon  the  rec- 
ord the  existence  of  all  facts  which  the  evidence  of  the  demur- 
ree  conduces  to  prove.  Inferences  are  left  where  they  were  be- 
fore the  Act  was  passed.  The  object  of  the  Act  seems  to  be 
twofold :  first,  to  notify  the  demurree  of  the  grounds  or  causes  of 
demurrer  which  the  demurrant  intends  to  rely  on,  and,  second, 
to  prevent  the  demurrant  from  relying  upon  one  or  more 
grounds  in  the  trial  court  and  then  assigning  different  grounds 
in  the  appellate  court.  The  present  form  of  stating  the  grounds 
of  demurrer  is  given  in  the  margin,  and  is  so  general  as  to  give 
the  demurree  but  little  more  information  than  he  had  under  the 
old  form. 

It  has  been  held  that  on  a  demurrer  to  the  evidence  it  is  not 
necessary  to  state  in  the  record  that  the  evidence  set  forth  is 
all  that  was  offered,  but  the  court  should  not  compel  a  joinder 
unless  all  of  the  evidence  is  set  out  in  the  demurrer.14  The 
present  statute  in  Virginia  requires  that  "the  party  tendering  the 
demurrer  to  evidence  shall  state  in  writing  specifically  the 
grounds  of  demurrer  relied  on,  and  the  demurree  shall  not  be 
forced  to  join  in  the  said  demurrer  until  the  specific  grounds 
upon  which  the  demurrant  relies  are  stated  in  writing,  nor  shall 
any  grounds  of  demurrer  not  thus  specifically  stated  be  consid- 
ered except  that  the  court  may,  in  its  discretion,  allow  the  demur- 
rant  to  withdraw  the  demurrer;  may  allow  the  joinder  in  the 
demurrer  to  be  withdrawn  by  the  demurree,  and  new  evidence 
admitted,  or  a  non-suit  to  be  taken  until  the  jury  retire  from  the 
bar."15  The  mode  of  procedure  is  as  follows :  After  all  the 
evidence  on  both  sides  has  been  introduced  (or,  if  the  demur- 

11.  Acts    (Va.)    1912,  Chap.  42,  p.   75. 

12.  11  Va.  Law  Reg.  959;  12  Va.  Law  Reg.  275. 

13.  12  Va.  Law  Reg.  195,  355. 

14.  Adkins  v.  Fry,  38  W.  Va.  549,  18  S.  E.  737;  Adkins  v.  Stephens, 
38    W.    Va.    557,    18    S.    E.    740. 

15.  Acts    (Va.)    1912,   ch.   42,   p.   75. 


§  257    FORM  AND  REQUISITES  OF  DEMURRER  AND  JOINDER        485 

rant  does  not  wish  to  introduce  any,  after  demurree  has  intro- 
duced all  of  his  evidence),  counsel  for  the  party  wishing  to  de- 
mur to  the  evidence  states  that  fact  to  the  court,  and  then  writes 
out  and  signs  his  demurrer  to  the  evidence.  The  counsel  for 
the  opposing  party  then  writes  out  and  signs  his  joinder  in  de- 
murrer. This  is  the  usual  method  of  procedure.  The  form  of 
such  a  demurrer  and  joinder  is  given  in  the  margin.16  The  jury 

16.  Form  of  Demurrer  to  Evidence  and  Joinder: 
Norton  Coal  Co.  ~\ 

Ads.  v  Trespass  on  the  case. 

Charles  Creditor  J 

And  the  said  plaintiff  by  his  counsel  produces  to  the  jury  to  main- 
tain the  issue  on  his  part  the  following  evidence,  to  wit: 

(Here  insert  plaintiff's  evidence  as  given  by  witnesses  and  shown 
by  the  stenographer's  report  marked  X  hereto  attached,  pages  1-50.) 

And  the  said  defendant,  by  his  counsel,  produces  to  the  jury  the 
following  evidence  to  maintain  the  issue  on  his  part,  to  wit: 

(Here  insert  defendant's  evidence  as  given  by  witnesses  and  shown 
by  stenographer's  report  marked  X,  hereto  attached,  pages  50-100.) 

And  the  said  defendant  says  the  matter  aforesaid  so  introduced 
and  shown  in  evidence  to  the  jury  by  the  plaintiff  is  not  sufficient  in 
law  to  maintain  the  said  issue  on  the  part  of  the  plaintiff  and  that  it, 
the  said  defendant,  is  not  bound  by  the  law  of  the  land  to  answer  the 
same;  wherefore,  for  want  of  sufficient  matter  in  that  behalf  to  the 
said  jury  shown  in  evidence  the  said  defendant  prays  judgment  and 
that  the  jury  aforesaid  may  be  discharged  from  giving  any  verdict 
upon  the  said  issue,  and  that  the  said  plaintiff  may  be  barred  from 
having  or  maintaining  his  aforesaid  action  against  it,  and  for  grounds 
of  its  said  demurrer  to  the  evidence,  the  defendant  states  in  writing: 

1.  That  the   said  evidence   does  not  show  that   the   defendant  was 
guilty  of  any  negligence  which  was  the  cause  of  this  accident. 

2.  That  the  evidence  shows  that  the  proximate  or  contributory  cause 
of   the   accident   was   the   carelessness   of   the   plaintiff,   and   that   the 
plaintiff  was  guilty  of  contributory  negligence. 

3.  That  the   evidence   shows  that  the   injury  was   the  result  of  an 
accident  which  was  unforeseen  and  could  not  be  guarded  against. 

4.  That  the  injury  was  the  result  of  an  accident  which  was  ordi- 
narily incident  to  the  employment   of  the  plaintiff  and  of  which  he 
assumed  the  risk:  and, 

5.  Because  if  the  defendant  was  guilty  of  any  negligence  whatso- 
ever which  caused  the  accident,  yet  the  plaintiff  had  full  knowledge 
thereof  and  assumed  the  risk  of  it. 

AYERS  &  FULTON, 

Attys.  for  the  defendant. 


486  DEMURRER    TO    EVIDENCE  §    258 

are  not  then  discharged,  but  counsel  proceed  at  once  to  argue 
before  them  the  measure  of  damages,  and  they  retire  to  consider 
of  the  damages,  and,  after  agreeing  upon  the  amount,  bring  in 
a  verdict  assessing  the  damages  subject  to  the  opinion  of  the 
court  on  the  demurrer  to  the  evidence.  The  amount  of  the  dam- 
ages being  thus  ascertained,  counsel  proceed  to  argue  the  case 
on  its  merits  before  the  court.  The  court  decides  whether  or 
not  there  shall  be  any  recovery.  If  there  is  a  recovery,  the  ver- 
dict of  the  jury  ascertains  the  'amount  thereof. 

§  258.    Right  to  demur. 

Either  party  may  demur  to  the  evidence  of  the  other,  but  this 
method  of  procedure  is  not  advisable  for  the  party  who  has  the 
burden  of  proof  on  any  issue,  if  there  is  any  countervailing 
evidence,  for  it  will  be  seen  presently  that  the  demurrant  waives 
all  of  his  evidence  in  conflict  with  that  of  the  demurree,  and 
this  he  could  not  afford  to  do  if  he  had  the  burden  of  proof. 
If,  however,  he  should  demur  to  the  evidence  and  there  should 
be  a  joinder,  he  cannot  avail  himself  of  his  error  in  the  appel- 
late court.  He  will  not  be  allowed  to  take  advantage  of  his  own 
errors.17  The  right  to  demur  extends  to  all  actions,  including 
actions  for  negligence.18  It  is  provided  by  statute,  both  in  Vir- 


Charles  Creditor 
v. 


I  Joinder  in 
Norton"coal  Co.  )   Demurrer  to  Evidence. 

And  the  plaintiff  says  that  the  matters  aforesaid,  to  the  jurors  in 
form  aforesaid,  shown  in  evidence,  are  sufficient  in  law  to  maintain 
the  issue  joined  on  the  part  of  the  plaintiff.  Wherefore,  for  as  much 
as  the  said  defendant  has  given  no  answer  to  the  same,  the  said  plain- 
tiff demands  judgment,  and  that  the  jury  be  discharged,  and  that  the 
defendant  be  convicted,  etc. 

KILGORE  &  BANDY, 

Attys.  for  the  plaintiff. 

The  above  form  is  taken  chiefly  from  the  record  in  the  case  of 
Norton  Coal  Co.  v.  Murphy,  108  Va.  528,  62  S.  E.  268. 

17.  Childers  v.  Dean,  4  Rand.  406;   Bennett  v.  Perkins,  47  W.   Va. 
425,  35  S.  E.  8;  1  Rob  (old)  Pr.  350;  Johnson  v.  Ches.  &  O.  Ry.  Co., 
91  Va.  171,  21  S.   E.  238. 

18.  Trout  v.  Va.  &  Tenn.  R.  Co.,  23  Gratt.  619;  Gerity  v.  Haley,  29 
W».  Va.  98,  11  S.  E.  901;  Johnson  v.  Ches.  &  O.  R.  Co.,  91  Va.  171,  21 
S.   E.  238. 


§§    259-260  JOINDER   IN   DEMURRER  487 

ginia  and  West  Virginia,  that  in  an  action  for  insulting  words, 
no  demurrer  shall  preclude  the  jury  from  passing  thereon.19 
Hence,  in  such  an  action  the  plaintiff  cannot  be  compelled  to  join 
in  a  demurrer  to  the  evidence  by  the  defendant,20  but  the  statute 
was  enacted  for  the  benefit  of  plaintiffs,  and  they  may  waive 
it  if  they  choose,  and  if  they  do,  the  case  may  be  heard  on  a 
demurrer  to  the  evidence,  just  as  other  civil  actions.21  This 
statute  does  not  apply  to  actions  for  common-law  slander,  but 
only  for  "insulting  words"  under  the  statute,  and  it  is  necessary 
for  the  plaintiff  to  show  by  his  declaration  that  he  is  suing 
under  the  statute,  else  it  will  be  held  to  be  common-law  slander, 
and  a  demurrer  may  be  interposed  as  in  other  common-law  ac- 
tions.22 

§    259.    Effect  of  demurrer  to  evidence. 

The  effect  of  a  demurrer  to  the  evidence  is  to  withdraw  the 
case  from  the  jury  and  submit  it  to  the  determination  of  the 
court.  It  is  usually  resorted  to  chiefly  by  corporations,  who  get 
scant  justice  at  the  hands,  of  juries,  for  the  purpose  of  having 
the  case  determined  by  the  court.  The  success  of  such  a  pro- 
cedure is  always  dependent  upon  the  weakness  of  the  demur- 
ree's  evidence,  and  the  inferences  to  be  drawn  therefrom.  It 
has  been  found  in  practice  that  the  courts  are  more  apt  to  say 
that  a  particular  inference  could  not  have  been  drawn  by  the 
jury  if  the  case  had  been  submitted  to  them,  than  they  are  to 
set  aside  a  verdict  by  the  jury  after  they  have  drawn  such  in- 
ference. 

§   260.    Joinder  in  demurrer. 

Where  a  party  has  the  right  to  demur  to  the  evidence,  and 
does  so,  it  is  the  duty  of  the  court  to  compel  the  other  party  to  join 
in  the  demurrer.23  Whether  or  not,  in  a  particular  case,  a  party 

19.  Va.  Code.  §  2897;  W.  Va.  Code  (1906).  §  3485. 

20.  Rolland  z:  Batcheldor,  84  Va.  664.  5  S.  E.  695. 

21.  Brown  v.   Norfolk  &  W.  R.  Co..  100  Va.  619,  42  S.   E.  664. 

22.  Hogan  v.  Wilmouth,  16  Gratt.  80. 

23.  Johnson  v.  Ches.  &  O.  Ry.  Co.,  91-Va.  171.  21  S.  E.  238;  Peabody 
Ins.  Co.  v.  Wilson,  29  W.  Va.  528,  2  S.  E.  888. 


488  DEMURRER   TO    EVIDENCE  §    260 

has  the  right  to  demur  so  that  it  becomes  the  duty  of  the  court 
to  compel  the  demur ree  to  join  therein,  is,  in  a  large  measure,  a 
question  addressed  to  the  sound  discretion  of  the  trial  court.  It 
is  not  an  arbitrary  but  judicial  discretion,  the  exercise  of  which 
may  be  reviewed  on  a  writ  of  error.24  An  objection,  however, 
to  joining  in  a  demurrer  must  be  made  in  the  trial  court.  It 
cannot  be  made  in  the  appellate  court  for  the  first  time.25  It 
was  formerly  held  that  there  were  two  classes  of  cases  in  which 
the  court  would  not  compel  a  joinder :  the  first  when  the  case 
is  clearly  against  the  demurrant,  and  his  motive  for  interposing 
the  demurrer  is  to  delay  the  decision;  the  second  when  the 
court  doubts  what  facts  may  be  reasonably  inferred  from .  the 
evidence  demurred  to,  for  in  such  case  the  jury  is  the  most  fit 
tribunal  to  decide.  On  a  demurrer  to  the  evidence  it  is  necessary 
to  incorporate  the  evidence  into  the  demurrer.  This  sometimes 
requires  considerable  time.  Formerly  there  were  no  steno- 
graphic reports  or  other  means  of  speedily  incorporating  the 
evidence  into  the  demurrer,  and  no  provision  was  made  for  hear- 
ing such  cases  in  vacation.  The  combined  effects  of  these  two 
difficulties  rendered  the  continuance  of  the  case  to  another  term 
a  practical  necessity.  Hence  a  party  who  had  no  case  might  gain 
a  term  of  court  by  demurring  to  the  evidence,  although  he  was 
positive  that  the  demurrer  would  be  decided  adversely  to  him. 
The  practical  removal  of  both  these  difficulties  has  led  the  Court 
of  Appeals  of  Virginia,  in  a  recent  case,  to  say,  obiter,  that  the 
fact  that  the  evidence  is  plainly  against  the  demurrant  is  no  longer 
a  ground  for  refusal  to  compel  joinder  in  the  demurrer.26  If, 
however,  a  state  of  facts  should  arise  in  which  the  demurrer 
would  cause  such  a  delay  it  can  hardly  be  doubted  that  the  court, 
now,  as  formerly,  would  refuse  to  compel  a  joinder  for  that  rea- 
son. The  second  ground  for  a  refusal  to  compel  a  joinder  still  ex- 

24.  Rohr  v.  Davis,  9  Leigh  30;  University  of  Va.  v.  Snyder,  100  Va. 
567,  42  S.  E.  337.     The  court  may  refuse  to  compel  a  plaintiff  to  join 
in    a   demurrer   to   evidence  when    he   asks   leave   to   introduce    other 
relevant  evidence,  although  he  has  rested  his  case.     Hunter  v.  Snyder, 
11  W.  Va.  198. 

25.  Hollandsworth   v.   Stone,   47  W.   Va.   773,   35   S.   E.   864. 

26.  University  of  Va.  v.  Snyder,  100  Va.  567,  42  S.  E.  337. 


§   261         CONCESSIONS   ON    DEMURRER   TO    THE   EVIDENCE  489 

ists.  The  court  may  doubt  what  facts  are  to  be  reasonably  inferred 
from  the  evidence  demurred  to  -for  various  reasons.  Chief  among 
these,  is  the  deficiency  of  evidence  on  the  part  of  the  demurree. 
Sometimes  also,  the  evidence  on  the  part  of  the  demurree  is  loose, 
indeterminate  and  circumstantial,  or  is  conflicting,  and  as  a  result 
the  court  is  in  doubt  as  to  what  facts  should  be  inferred.27 
These  are  the  principal  sources  of  doubt  which  beset  the  court 
in  determining  whether  a  joinder  should  be  compelled  or  not. 
Of  course,  under  the  Virginia  doctrine,  if  doubt  should  arise 
from  contradictory  evidence  on  behalf  of  the  demurrant,  this 
is  no  objection,  as  he  waives  such  contradictory  evidence  by  de- 
murring to  the  evidence.  The  contradiction  is  removed  by  the 
waiver.28  It  has  been  held  that  it  is  not  error  for  a  court  to 
compel  the  defendant  to  join  in  the  plaintiff's  demurrer  to  the 
evidence  where  it  would  be  the  duty  of  the  court  to  set  aside  a 
verdict  for  the  defendant.29 

§    261.    Concessions  on  demurrer  to  the  evidence. 

The  demurrant  is  considered  as  admitting  the  truth  of  all  his 
adversary's  evidence  and  all  just  inferences  that  can  be  properly 
drawn  therefrom  by  the  jury,  and  as  waiving  all  of  his  own  evi- 
dence which  conflicts  with  that  of  his  adversary,  or  which  has 
been  impeached,  and  all  inferences  from  his  own  evidence  (al- 
though not  in  conflict  with  his  adversary's)  which  do  not 
necessarily  result  therefrom.30  The  court,  however,  is  not 

27.  Harrison   v.    Brooks,    1    Munf.   22;    Whittirgton   v.    Christian,   2 
Rand.  357;  Rohr  r.  Davis,  9  Leigh  30;  Trout  v.  Va.  &  Tenn.  R.  Co., 
23  Gratt.  635;  Johnson  v.  Ches.  &  O.  R.  Co.,  91  Va.  171,  21  S.  E.  238; 
Merchants'  Bank  z1.  Evans,  9  W.  Va.  373. 

28.  University  of  Virginia  r.  Snyder,  100  Va.  567,  42  S.  E.  337. 

29.  Deaton  r.  Taylor,  90  Va.  219,  17  S.  W.  944. 

30.  Ware  v.  Stephenson,  10  Leigh  155;  Trout  v.  Va.  &  Tenn.  R.  Co., 
23  Gratt.  619:  Johnson  r.  Ches.  &  O.  R.  Co.,  91  Va.  171,  21  S.  E.  238; 
University  of  Va.  r.  Snyder,  100  Va.  567,  42  S.  E.  337;  Richmond  v. 
Barry,  109  Va.  274,  63  S.  E.  1074. 

Concessions  made  by  the  demurrant  have  been  variously  stated  in 
different  cases.  It  is  said,  "on  a  demurrer  to  the  evidence,  the  court 
is  to  consider  all  of  the  demurrant's  evidence  in  conflict  with  that  of 
the  demurree  withdrawn,  the  credibility  of  the  latter's  witnesses 
admitted,  and  all  facts  admitted,  which  the  demurree's  evidence,  thus 


490  DEMURRER    TO    EVIDENCE  §    261 

obliged  to  accept  as  true  what  it  knows  judicially  to  be  untrue, 
nor  what,  in  the  nature  of  things,  could  not  have  occurred  in  the 
manner  and  under  the  circumstances  mentioned,  nor  what  is  not 
susceptible  of  proof.31 

considered,  proves  or  conduces  to  prove,  or  which  may  be  reasonably 
inferred  from  his  whole  evidence  both  direct  and  circumstantial;  and, 
if  several  inferences  may  be  drawn  from  that  evidence,  differing  in 
degrees  of  probability,  the  court  must  adopt  those  most  favorable  to 
the  demurree,  provided  they  be  not  forced,  strained,  or  manifestly 
repugnant  to  reason."  Horner  v.  Speed,  2  Pat.  &  H.  616.  Another 
phrasing  of  the  rule  is,  "by  a  demurrer  to  the  evidence  the  party  de- 
murring is  considered  as  admitting  the  truth  of  the  adversary's  evi- 
dence, and  all  just  inferences  which  can  be  properly  drawn  therefrom 
by  a  jury,  and  as  waiving  all  of  his  own  evidence  which  conflicts  with 
that  of  his  adversary,  and  all  inferences  from  his  own  evidence  (al- 
though not  in  conflict  with  his  adversary's)  which  do  not  necessarily 
result  therefrom."  Johnson  v.  Ches.  &  O.  R.  Co.,  supra.  Still  again 
it  is  said  that,  "the  demurrant  is  entitled  to  the  benefit  of  all  of  his 
unimpeached  evidence  not  in  conflict  with  his  adversary's  and  to  all 
inferences  that  necessarily  flow  therefrom."  Bowers  v.  Bristol,  100 
Va.  533,  42  S.  E.  296.  Upon  the  subject  of  necessary  inferences,  see 
Rochester  Ins.  Co.  v.  Monumental  Association,  107  Va.  701,  60  S.  E. 
93.  As  to  just  inferences,  see  Norfolk  &  Western  R.  Co.  v.  Suther- 
land, 105  Va.  545,  54  S.  E.  465;  Marsteller  v.  Coryell,  4  Leigh  325; 
Union  Steamship  Co.  v.  Nottinghams,  17  Gratt.  115;  Hansbrough  v. 
Thorns,  3  Leigh  147;  Tutt  v.  Slaughter,  5  Gratt.  3G4;  Land  Co.  v. 
Calhoun,  16  W.  Va.  374. 

A  demurrer  to  evidence  in  an  action  of  ejectment  does  not  have 
the  effect  of  excluding  from  the  consideration  of  the  court  the  title 
papers  of  the  demurrant.  If  a  junior  patent  covers  land  embraced 
by  a  senior  patent,  there  is  a  conflict  in  the  grants  to  the  extent 
that  the  same  land  is  covered  by  both,  but  this  is  not  a  conflict  of 
evidence.  The  grants  do  not  contradict  each  other.  The  common- 
wealth issued  both.  The  demurrant  in  such  case  does  not  waive  the 
evidence  of  his  title  manifested  by  such  title  papers.  Fentress  v. 
Pocahontas  Club,  108  Va.  155,  60  S.  E.  633. 

For  a  full  collection  of  Virginia  and  West  Virginia  cases  on  the 
subject  of  concessions  on  demurrer  to  evidence,  see  Va.  Reports  An- 
notated, Tutt  v.  Slaughter,  5  Gratt.  364. 

31.  Ches.  &  O.  R.  Co.  v.  Anderson,  93  Va.  650,  25  S.  E.  947;  Norfolk 
&  W.  R.  Co.  -v.  Crowe,  110  Va.  798,  67  S.  E.  518;  S.  R.  Co.  v.  Wiley, 
112  Va.  183,  70  S.  E.  510. 


§    262  PROCEDURE   ON    DEMURRER   TO    THE   EVIDENCE  491 

Such  great  concessions  are  required  of  the  demurrant  by  the 
demurrer  as  a  condition  of  his  withdrawing  the  cause  from  the 
jury  that  it  becomes  a  very  dangerous  proceeding,  and  should 
not  be  resorted  to  when  the  demurrant's  case  depends  on  evi- 
dence in  conflict  with  that  of  his  adversary.  The  occasion  for 
resorting  to  it  is  the  extreme  weakness  of  the  adversary's  case, 
coupled  with  a  distrust  of  the  jury,  as  in  the  corporation  cases.32 
In  nearly  all  the  States  where  a  demurrer  to  the  evidence  is 
used,  the  demurrant  waives  all  of  his  evidence,  but  the  rule  is 
otherwise  in  Virginia;  and  "as  is  well  understood,  the  demur- 
rant  is  entitled  to  the  benefit  of  all  of  his  unimpeached  evidence, 
not  in  conflict  with  his  adversary's,  and  to  all  inferences  that 
necessarily  flow  therefrom."33  Such  also  was  the  holding  in 
West  Virginia  until  comparatively  recently.  Recent  decisions 
in  that  State  have  modified  the  former  holdings.  Under  what  is 
termed  the  new  rule  in  that  State,  the  court  considers  all  the  evi- 
dence in  the  case.  The  demurrant  does  not  waive  any  of  his 
evidence  which  is  competent,  but  where  it  conflicts  with  that  of 
the  demurree  it  is  regarded  as  overcome  unless  it  decidedly  pre- 
ponderates. If  the  evidence,  though  conflicting,  decidedly  pre- 
ponderates in  favor  of  the  demurrant,  the  demurrer  will  be  SUSL 
tained.34 

§    262.    Procedure  on  demurrer  to  the  evidence. 

A  case  is  regularly  proceeded  with  as  any  other  action  at  law 
would  be  until  all  the  evidence  on  both  sides  has  been  introduced, 

32.  See  Trout  v.  Va.,  etc.,  R.  Co.,  23  Gratt.  619;  Richmond,  etc.,  R. 
Co.  v.  Anderson,  31  Gratt.  812;  Creekmur  v.  Creekmur,  75  Va.  430; 
Orange,  etc.,  R.  Co.  v.  Mills,  76  Va.  773;  Eubank  v.  Smith,  77  Va.  206; 
Richmond,  etc..  R.  Co.  v.  Moore,  78  Va.  93;  Rudd  v.  Richmond,  etc.,  R. 
Co.,  80  Va.  546;  Farley  v.  Richmond,  etc.,  R.  Co.,  81  Va.  783;  Jones 
r.  Old  Dominion  Cotton   Mills,  82  Va.   140;  Va.   Mining,  etc.,  Co.  v. 
Hoover,  82  Va.  449,  4  S.  E.  689;  Norfolk,  etc.,  R.  Co.  v.  Harman,  83 
Va.  553,  8  S.  E.  251;  Ayers  v.  Richmond,  etc.,  R.  Co..  84  Va.  679,  5  S. 
E.  582;  Johnson  v.  Chesapeake,  etc.,  R.  Co.,  91  Va.  171,  21  S.  E.  238; 
Simmons  v.  Southern  R.  Co.,  96  Va.  152,  31  S.  E.  7. 

33.  Bowers  7'.   Bristol,  100  Va.  533,  42  S.  E.  296. 

34.  Maple  r.  John,  42  W.  Va.  30,  24  S.  E.  608;  Teal  v.  Ohio  R.  Co.. 
49   W.  Va.   85.  38   S.   E.   518;    Barrett  r.   Coal   Co.,   55   W.   Va.   395,  47 
S.   E.   154. 


492  DEMURRER   TO    EVIDENCE  §    262 

if  the  demurrant  elects  to  introduce  any  evidence.  Then  the 
counsel  for  the  party  desiring  to  demur  states  that  he  demurs  to 
the  evidence.  Usually,  counsel  for  the  opposing  party  states 
that  he  joins  in  the  demurrer.  The  demurrer  and  joinder  are 
then  drawn  up,  as  hereinbefore  indicated,  and  signed  by  coun- 
sel. Of  course,  if  objection  is  made  to  joining  in  the  demurrer, 
the  objection  is  stated  to  the  court  and  the  question  argued  and 
decided  by  the  court.  If  joinder  is  compelled,  then  the  demur- 
rer and  joinder,  after  being  reduced  to  writing,  are  signed  by 
counsel.  Under  the  English  procedure  the  jury,  at  this  stage 
of  the  proceedings,  is  discharged,  and,  if  need  be,  after  the  de- 
cision is  rendered,  another  jury  is  called  to  assess  damages.  In 
Virginia  and  West  Virginia,  the  practice  is  not  to  discharge  the 
jury,  but  to  proceed  with  the  argument  before  them  as  to  the 
measure  of  damages,  and,  after  the  argument,  the  jury  render 
their  verdict  subject  to  the  opinion  of  the  court  on  the  demurrer 
to  the  evidence.35  The  question  of  whether  there  shall  or  shall 
not  be  any  recovery  in  the  case  is  a  question  of  law  for  the 
court,  and  with  this  the  jury  are  not  concerned.36  They  are 
only  required  to  assess  damages  conditionally,  and,  for  this  pur- 
pose, can  consider  the  evidence  only  so  far  as  it  bears  on  the 
measure  of  damages.  Counsel  may  argue  upon  all  the  evidence 
in  mitigation  of  damages,  but  not  in  bar.37  The  usual  and  com- 
mon form  of  the  verdict,  and  the  one  adapted  to  most  cases,  is : 
"We,  the  jury,  find  for  the  -  -  (demurree)  and  assess  his 
damages  at  $ —  -  subject  to  the  opinion  of  the  court  on  the 
demurrer  to  the  evidence."  Probably  a  more  correct  form,  and 
one  adapted  to  all  cases,  would  be  a  finding  in  the  alternative^ 
thus:  "If,  upon  the  demurrer  to  the  evidence,  the  court  be  of 
opinion  for  the  plaintiff,  then  we  find  for  the  plaintiff  and  as- 
sess his  damages  at  $ —  — ,  but  if  for  the  defendant,  we  find 
for  the  defendant."  (and  if  any  damages  are  to  be  assessed  in 

35.  Hansbrough  v.  Thorn,  3  Leigh  147;  Green  v.  Judith,  5  Rand.  1; 
Norfolk  &  W.  R.  Co.  v.  Harman,  83  Va.  553,  8  S.  E.  251;  Taylor  v. 
Ches.  &  O.  R.  Co.,  41  W.  Va.  704,  24  S.  E.  631;  1  Rob  (old)  Pr.  351. 

36.  Humphreys  v.  West,  3  Rand.  516;  Briggs  v.  Hall,  4  Leigh  484; 
Riddle  v.  Core,  21  W.  Va.  530. 

37.  Norfolk  &  W.  R.  Co.  v.  Harman,  83  Va.  553,  8  S.  E.  251. 


§  262  PROCEDURE    ON    DEMURRER    TO    THE    EVIDENCE  493 

his  favor)  "and  assess  his  damages  at  $ ."38  As  has  been 

seen,  no  bill  of  exception  is  necessary  to  the  ruling  of  the  court 
on  the  demurrer  to  the  evidence.  Nor  is  a  motion  for  a  new 
trial  necessary  to  enable  the  Court  of  Appeals  to  review  the  de- 
cision of  the  trial  court  on  the  question  as  to  whether  the  evi- 
dence does  or  does  not  support  the  issue.  A  demurrer  to  the 
evidence  is  as  much  a  part  of  the  record  as  any  other  pleading, 
but  if  the  amount  of  damages  assessed  by  the  jury  is  deemed 
excessive,  a  motion  must  be  made  in  the  trial  court  to  set  aside 
or  abate  the  verdict.  Objection  to  the  amount  of  damages  can- 
not be  made  for  the  first  time  in  the  appellate  court.  If  too 
large  or  too  small,  objection  on  that  account  must  be  made  in  the 
trial  court.39 

Proceedings  on  a  demurrer  to  the  evidence  are  largely  under 
the  control  of  the  trial  court,  and  in  extreme  cases,  to  prevent  a 
manifest  failure  of  justice,  the  trial  court  may,  in  the  absence  of 
a  statute  prohibiting  it,  permit  the  demurree  to  introduce  addi- 
tional evidence,  even  after  joinder  in  demurrer,  but  this  is  rarely 
done.  This  is  usually  accomplished  by  permitting  the  demurree 
to  withdraw  his  joinder  and  then  introduce  the  evidence  and  the 
opposite  party  has  then  again  to  determine  whether  or  not  he 
will  demur  to  the  evidence,40  or  he  might  suffer  a  non-suit  or 
probably  amend  under  §  3384  of  the  Code.41  The  present  stat- 
ute in  Virginia  quoted  in  §  257,  ante,  permits  the  withdrawal 
of  joinder  in  the  demurrer  and  the  introduction  of  new  evi- 
dence, or  a  non-suit. 

After  the  jury  have  rendered  their  verdict  and  it  has 
been  received  by  the  court,  they  are  discharged,  and  it  then 

38.  South  Roanoke  Land  Co.  v.  Roberts,  99  Va.  487,  39  S.  E.  133. 

39.  Rhule  v.  Seaboard  Air  Line  R.  Co.,  102  Va.  343,  46  S.   E.  331; 
Riddle  v.  Core,  21  W.  Va.  530;  Proudfoot  v.  Clevenger,  33  W.  Va.  267, 
10  S.  E.  394. 

40.  Peabody  Ins.  Co.  v.  Wilson,  29  W.  Va.  528,  2  S.  E.  88;  Norfolk 
&  W.  R.  Co.  v.  Coffey,  104  Va.  665,  51  S.  E.  729.    See,  also,  Hunter  v. 
Snyder,  11  W.  Va.  198.     As  to  additional  evidence  before  joinder,  sec 
Pocahontas  Coal  Co.  v.  Williams,  105  Va.  768,  54  S.  E.  868;  Taliaferro 
v.  Gatewood,  6  Munf.  321;  Fairfax  v.  Lewis,  11  Leigh  233;  Hunter  v. 
Snyder,  11  W.  Va.  198. 

41.  2  Va.  L.  Reg.  192.     Note  by  Judge  Burk?. 


494  DEMURRER   TO    EVIDENCE  §    262 

becomes  necessary  for  the  court  to  decide  the  issue  of  law 
arising  on  the  demurrer.  In  determining  the  facts  proved,  the 
court  looks  to  the  whole  evidence,  including  the  cross-exami- 
nation of  witnesses,  and  defects  in  one  answer  may  be  supplied 
by  statements  in  another.  It  is  not  permissible,  however,  to  take 
a  detached  statement  of  a  witness  for  the  demurrant  and  say 
that  that  particular  statement  is  not  contradicted  by  evidence  for 
the  demurree,  but  the  statements  of  the  witness  must  be  taken  as 
a  whole,  and  if,  when  so  considered,  they  cannot  be  reconciled 
with  the  demurree's  evidence  the  statements  must  be  rejected.42 
If  incompetent  evidence  has  been  admitted  and  duly  excepted 
to,  this  will  be  excluded  in  considering  the  demurrer.  The  de- 
murrer does  not  waive  the  exception.43  The  rule  is  probably 
otherwise  outside  of  Virginia  and  West  Virginia.44  In  cases  of 
doubt  as  to  what  inferences  should  be  drawn,  those  most  favor- 
able to  the  demurree  should  be  adopted.45  In  determining  what 
judgment  should  be  entered,  the  court  should  consider,  if  a  ver- 
dict were  found  in  favor  of  the  demurree,  would  the  court  be 
justified  in  setting  it  aside.  If  not,  then  the  demurrer  should 
be  overruled.46  The  judgment  of  the  court  on  a  demurrer  to 
the  evidence  in  the  trial  court  is  final.47 

If  the  demurrer  to  the  evidence  is  overruled,  but  the  condi- 
tional verdict  of  the  jury  is  set  aside,  what  judgment  should  be 
rendered  by  the  trial  court?  Two  courses  would  seem  to  be 
open  to  it,  either  to  order  a  writ  of  inquiry  or  a  new  trial  de 

42.  Ware  v.   Stephenson,   10   Leigh   155;   Norfolk   &  W.   R.   Co.   v. 
Holmes,  109  Va.  407,  64  S.  E.  46. 

43.  Dishazer  v.  Maitland,  12  Leigh  524;  Taylor  v.  B.  &  O.  R.  Co., 
33  W.  Va.  39,  10  S.  E.  29;  Huntington  Nat.  Bank  v.  Loar,  51  W.  Va. 
540,  41  S.  E.  901;  but  if  after  discarding  the  illegal  evidence,  there  is 
still  left  sufficient  legal  evidence  to  support  the  judgment,  it  will  not 
be  set  aside.     Lane  Bros.  v.  Bott,  104  Va.  615,  52  S.  E.  258. 

44.  See  6  Encl.  PL  &  Pr.  443. 

45.  Ware  v.  Stephenson,  10  Leigh  155. 

46.  Ware  v.  Stephenson,  10  Leigh  155,    165;    Lewis   v.    Ches.    &   O. 
R.  Co.,  47  W.  Va.  650,  35  S.  E.  908.     If  some  only  of  the  defendants 
demur  to  the  evidence  and  there  is  a  conditional  verdict  as  to  all,  it 
should  be  set  aside  as  to  those  who  do  not  demur  on  the  ground  that 
the  verdict  is  not  responsive  to  the  issue.     Howdashall  v.  Krenning, 
103  Va.  30,  48  S.  E.  491. 

47.  Fowler  v.  Balto.  &  O.  R.  Co.,  18  W.  Va.  579. 


§    263  RULE   OF  DECISION  495 

novo.  The  oath  of  a  juror  in  civil  cases  requires  him  to  well 
and  truly  try  the  issues  joined  and  a  true  verdict  render  accord- 
ing to  the  evidence.  The  duty  devolved  on  the  jury,  however, 
is  twofold.  It  is  not  only  to  try  the  issues  joined  but  to  assess 
damages,  and  for  this  latter  purpose,  it  may  hear  evidence.48 
By  a  demurrer  to  the  evidence,  the  first  duty,  to  wit,  to  decide 
the  issue  joined,  is  taken  away  from  the  jury  and  assigned  to 
the  court.  The  second  duty  it  proceeds  to  discharge.  When 
the  court  overrules  the  demurrer,  it  decides  that  the  demurree 
is  entitled  to  recover  something  at  least.  We  have,  then,  the  de- 
cision of  the  court  to  whom  the  demurrant  especially  referred 
the  question  that  the  demurree  is  entitled  to  recover,  and  the 
only  thing  that  is  left  open  is  the  amount.  It  would  seem,  there- 
fore, that  the  proper  mode  of  procedure  would  be  to  call  another 
jury  simply  to  assess  the  amount  of  the  demurree's  damages. 
The  question  of  the  liability  of  the  demurrant,  having  been  de- 
termined adversely  to  him,  there  can  be  no  good  reason  why  he 
should  have  another  hearing  on  that  question,  although  he  is  en- 
titled to  further  hearing  as  to  the  amount  of  his  liability.49  The 
contrary  view,  however,  was  taken  in  a  recent  Virginia  case.50 

§  263.    Rule  of  decision. 

In  Virginia  the  rule  of  decision  of  a  demurrer  to  the  evidence 
has  been  stated  in  many  cases  to  be  that  where,  upon  a  demurrer 
to  the  evidence,  the  evidence  is  such  that  a  jury  might  have 
found  a  verdict  for  the  demurree,  the  court  tmtst  give  judgment 
in  his  favor;  and  if  reasonably  fair-minded  men  might  differ 
about  the  matter,  the  demurrer  should  be  overruled.51  But  in 
determining  what  verdict  a  jury  might  have  found,  the  demur- 

48.  McNutt  v.  Young,  8  Leigh  542. 

49.  Humphreys  v.  West,  3  Rand.  516;  Green  v.  Judith,  5  Rand,  at  p. 
10;  Briggs  v.  Hall,  4  Leigh  490;  Maple  v.  John,  42  W.  Va.  30,  34,  34 
S.  E.  608. 

50.  Merchants'  Trans.  Co.  v.  Masury,  107  Va.  40,  57  S.  E.  613. 

51.  Bass  v.  Norfolk  Ry.  Co.,  100  Va.  1,  40  S.  E.  100;  Ches.  &  O.  R. 
Co.  r.  Pierce,  103  Va.  99,  48  S.  E.  534;  Citizens'  Bank  v.  Taylor,  104 
Va.  164,  51  S.  E.  159;  Wood  v.  Southern  R.  Co.,  104  Va.  650,  52  S.  E. 
371;  Massey  v.  Southern  R.  Co.,  106  Va.  515,  56  S.   E.  275;  C.  &  O. 
Ry.  Co.  r.  Hoffman,  109  Va.  44,  63  S.  E.  432. 


496  DEMURRER   TO    EVIDENCE  §    263 

rant  is  considered  as  admitting  the  truth  of  all  his  adversary's 
evidence,  and  all  just  inferences  that  can  be  properly  drawn 
therefrom  by  a  jury,  and  as  waiving  all  of  his  own  evidence 
which  conflicts  with  that  of  his  adversary,  or  which  has  been 
impeached,  an'd  all  inferences  from  his  own  evidence  (although 
not  in  conflict  with  his  adversary's)  which  do  not  necessarily 
result  therefrom.  Such  was  also  the  rule  in  West  Virginia  until 
a  comparatively  recent  time. 

The  present  rule  in  West  Virginia  may  be  stated  in  the  same 
terms,  but  the  result  is  different  because  the  concessions  are  not 
the  same  as  formerly.  In  that  State  the  demurrant  is  not  con- 
sidered as  waiving  all  of  his  unimpeached  evidence  that  conflicts 
with  that  of  his  adversary.  Under  the  new  rule  now  prevailing 
in  West  Virginia,  the  concessions  of  the  demurrant  are  stated 
thus:  "On  the  subject  of  the  conflict  of  evidence  the  rule  then 
would  be  that  the  evidence  of  the  demurrant  in  conflict  with  the 
evidence  of  the  demurree  should  be  rejected  unless  the  conflict- 
ing evidence  of  the  demurrant  so  plainly  preponderates  over  the 
evidence  of  the  demurree,  that  if  there  were  a  verdict  in  favor 
of  the  latter  it  would  be  set  aside,  and  in  such  case,  the  demurrer 
must  be  sustained.  For  if  the  evidence,  although  conflicting, 
plainly  preponderates  in  favor  of  the  demurrant,  judgment 
should  be  entered  accordingly."52  This  change  in  the  concessions 
made  by  the  demurrant  is  said  to  be  the  result  of  a  change  in 
the  statute  (made  in  1891)  which  requires  the  trial  court  to  cer- 
tify all  the  evidence,  on  a  motion  for  a  new  trial,  and  the  Court 
of  Appeals  to  consider  the  evidence,  both  upon  the  application  for 
and  the  hearing  of  a  writ  of  error.53  It  is  said  that  the  Court  of 
Appeals  must,  under  this  statute,  set  aside  a  verdict  if  it  is 
against  a  clear  preponderance  of  the  evidence,  and  that  the  stat- 
ute has  "thereby  incidentally  modified  the  rule  relating  to  the 
consideration  of  the  evidence  on  demurrer,  and  this  is  the  new 
rule  established  in  the  case  of  Maple  v.  John.  To  hold  other- 
wise we  must  say  in  cases  of  demurrer  to  evidence,  that  when 
the  word  verdict  is  used,  it  is  according  to  its  ancient  effect  prior 
to  the  decision  of  Johnson  v.  Burns.  This  would  make  unneces- 

52.  Barrett  v.  Coal  &  Coke  Co.,  55  W.  Va.  395,  398,  47  S.  E.  154. 

53.  W.  Va.  Code   (1906),  §  3979. 


§    264  EXCEPTIONS  TO  RULINGS  AND  WRIT  OF  ERROR  497 

sary  confusion  between  the  present  rule  relating  to  motions  to 
set  aside  verdicts  of  juries,  the  motion  to  exclude  the  evidence, 
the  motion  to  direct  a  verdict  and  a  demurrer  to  the  evidence, 
all  which  motions  should  be  governed  by  the  same  principles 
of  law,  and  this  is  that  where  the  evidence  plainly  preponder- 
ates in  favor  of  a  litigant,  he  is  entitled  to  judgment."54  No  such 
change  has  been  made  in  the  statute  of  Virginia,  but  where  the 
evidence  (not  the  facts)  is  certified,  a  plaintiff  in  error,  seeking 
to  reverse  a  verdict  because  contrary  to  the  evidence,  still  goes 
up  as  on  a  demurrer  to  the  evidence  by  him.55 

§    264.    Exceptions  to  rulings  and  writ  of  error. 

After  a  case  has  been  decided  by  the  trial  court,  on  a  demurrer 
to  the  evidence,  that  is  the  end  of  the  case  in  the  trial  court. 
The  demurrer  containing  all  of  the  evidence,  being  a  pleading, 
is  a  part  of  the  record,  and  the  record  of  the  case  is  complete. 
Absolutely  nothing  remains  to  be  done  to  prepare  the  case  for 
the  appellate  court.  No  bill  of  exception  is  necessary,  nor  any 
kind  of  objection  in  any  form  to  the  ruling  of  the  court  on  the 
demurrer.56  If  a  writ  of  error  is  desired,  a  copy  of  the  record 
is  obtained  as  in  other  actions  at  law,  and  application  is  made 
for  the  writ  of  error  as  in  other  civil  cases.  If  the  writ  of  er- 
ror is  granted,  the  case  is  heard  in  the  appellate  court  exactly  as 
it  was  in  the  trial  court,  subject  to  the  same  concessions,  but  no 
more.  If  the  appellate  court  is  of  the  opinion  to  affirm  the  de- 
cision of  the  lower  court,  it  does  so,  and  that  terminates  the  pro- 
cedure in  the  appellate  court  as  it  does  in  any  other  case.  If, 
however,  the  appellate  court  is  of  the  opinion  to  reverse  the  de- 
cision of  the  trial  court ;  it  generally  enters  final  judgment  for 
the  party  prevailing.  It  does  not  remand  the  cause  for  a  new 
trial.57 

54.  Barrett  r.  Coal  &  Coke  Co.,  supra;  Johnson  v.  Burns,  39  W.  Va. 
68,  20  S.  E.  686;  Maple  v.  John,  42  W.  Va.  30,  24  S.  E.  608;  Teal  v. 
Ohio  Ry.  Co.,  49  W.  Va.  85,  38  S.  E.  518. 

55.  Va.  Code  (1904),  §  3484. 

56.  Ante,  §  256:  Norfolk  &  W.  R.  Co.  v.  Dunnaway,  93  Va.  29,  24  S. 
E.  698;  Fidelity  Co.  r.  Chambers,  93  Va.  138,  24  S.  E.  896;  Riddle  v. 
Core,  21  W.  Va.  530;  Proudfoot  v.  Clevenger,  33  W.  Va.  267,  10  S.  E. 
394. 

57.  Norfolk   &   W.    R.    Co.   v.    Marshall,   90   Va.   836,   20   S.    E.   823; 
Metropolitan  Ins.  Co.  v.  Rutherford,  98  Va.  195,  35  S.  E.  361. 

—32 


498  DEMURRER   TO    EVIDENCE)  §   264 

If  the  error  committed  by  the  trial  court  consisted  in  the  fail- 
ure to  compel  a  joinder,  and  all  of  the  evidence  is  in  the  record 
so  that  the  court  can  do  complete  justice  between  the  parties,  and 
can  plainly  see  not  only  that  joinder  should  have  been  compelled, 
but  also  what  judgment  should  have  been  rendered  thereon,  it 
will  treat  the  verdict  as  an  award  of  damages  rendered  upon  a  de- 
murrer to  the  evidence,  and  proceed  to  enter  such  judgment 
thereon  as  the  trial  court  ought  to  have  entered  if  joinder  had 
been  required;  thus  ending  the  controversy  without  subjecting 
the  parties  to  further  delay.58 

Generally,  the  judgment  rendered  in  the  appellate  court  on  a 
demurrer  to  the  evidence  is  final,  but  sometime^  the  case  is  re- 
manded upon  a  question  of  damages,  and  occasionally  for  prej- 
udicial error  committed  by  the  trial  court  in  the  procedure  on 
the  demurrer.59 

58.  University  of  Va.  v.  Snyder,  100  Va.  567,  42  S.  E.  337. 

59.  In  N.  &  W.  v.  Coffey,  104  Va.  665,  51  S.  E.  729,  after  joinder  in 
demurrer  and  a  conditional  verdict,  the  court  and  the  plaintiff's  coun- 
sel were  taken  by  surprise  by  finding  no  replication  to  a  plea  of  the 
statute  of  limitations,  and  it  was  held  that  the  court  should  have  set 
aside  the  demurrer  to  the  evidence,  and  the  award  of  damages  thereon 
and  have  caused  the  issue  to  be  made  up  on  the  plea,  and  ordered  a 
new  trial  of  the  case,  and  for  a  failure  to  do  this  the  judgment  of  the 
trial  court   should  be  reversed,  and  the  cause   remanded  for  further 
proceedings.     In  Merchants'  Trans.  Co.  v.  Masury,  107  Va.  40,  57  S.  E. 
613,  it  was  held  that  when  the  demurrer  to  the  evidence  was  over- 
ruled but  the  conditional  verdict  of  the  jury  was  set  aside  for  lack 
of  evidence  to  support  it,  the  trial  court  should  have  permitted  the 
withdrawal    of   the    demurrer,    and   have    directed   a   new   trial   of   the 
•whole  case,  and  for  failure  to  do  this,  the  judgment  of  the  trial  court 
was    reversed   and   the   case   remanded   for   a   new  trial   de   novo.     In 
Peabody  Ins.  Co.  v.  Wilson,  29  W.  Va.  528,  2  S.  E.  88,  the  court  of 
appeals  of  West  Virginia  set  aside  the  verdict  of  the  jury  and  also  the 
demurrer  to  the  evidence  and  awarded  a  new  trial,  because  that  was 
what  the  trial  court  ought  to  have  done. 

If,  on  a  writ  of  error,  the  appellate  court  be  of  opinion  that  a 
demurrer  to  the  evidence  in  the  trial  court  should  have  been  over- 
ruled and  judgment  entered  for  the  demurree,  but  the  amount  of  the 
verdict  is  excessive  and  the  amount  of  the  excess  plainly  appears 
from  the  record,  the  appellate  court  will  not  remand  the  case  nor  put 
the  demurree  upon  terms,  but  will  enter  up  final  judgment  for  the 
correct  amount  which  the  record  shows  the  demurree  is  entitled  to  re- 
cover. Whitehead  v.  Cape  Henry  Syndicate.  Ill  Va.  193,  68  S.  E.  263 


CHAPTER  XXXV. 
INSTRUCTIONS. 

§  265.  Object  of  instructions. 

§  266.  Charging  the  jury  generally. 

§  267.  Nature,  construction  and   effect  of  instructions. 

§  268.  Abstract  propositions — partial  view  of  case. 

§  269.  Scintilla   doctrine. 

§  270.  Sufficiently  instructed. 

§  271.  Conflicting  instructions. 

§  272.  Conflicting  evidence. 

§  273.  Directing  a  verdict. 

§  274.  Law  and  fact. 

Foreign   laws. 

Written  instruments. 

Court's  opinion  on  the  evidence. 
§  275.  Oral  or  written. 
§  276.  Time  of  giving. 

Order  of  reading  to  jury. 
§  277.  Multiplication  of  instructions. 
§  278.  Find  for  the  plaintiff 
§  279.  Inviting  error. 
§  280.  How  instructions  are  settled. 

§    265.    Object  of  instructions. 

The  object  of  instructions  is  to  point  out  the  issues  involved 
and  the  evidence  relevant  thereto,  and  to  give  the  jury  a  brief, 
clear,  and  succinct  statement  of  the  law  applicable  to  the  case. 
Frequently  no  reference  is  made  in  the  instructions  to  the  evi- 
dence, but  the  jury  is  instructed  only  on  the  law  applicable  to 
the  issues  involved.  Sometimes,  however,  it  is  desirable  to 
make  the  instruction  more  concrete,  and  this  is  done  by  stating 
the  facts  hypothetically,  leaving  the  jury  to  ascertain  what  facts 
are  established  by  the  evidence,  without  expression  of  opinion 
on  the  part  of  the  court  as  to  the  weight  of  the  evidence,  or  what 
facts  are  established.  This  is  accomplished  by  instructing  the 
jury  that  if  they  believe  such  and  such  facts  to  be  established, 
then  the  law  is  so  and  so. 


500  INSTRUCTIONS  §  266 

§    266.    Charging  the  jury  generally. 

In  England  and  in  the  federal  courts  it  is  common  practice 
for  the  judge,  after  the  argument,  and  immediately  before  the 
jury  retire,  to  sum  up  the  evidence  as  the  judge  understands  it, 
and  to  charge  the  jury  upon  the  law  of  the  case  upon  this  sum- 
ming up.  No  such  practice  exists  in  Virginia.  On  the  contrary, 
it  would  be  regarded  as  an  invasion  of  the  province  of  the  jury 
for  the  judge  to  do  so.  It  is  not  the  practice  in  Virginia  to  give 
instructions  unless  requested,  except  where  it  is  necessary  to  pre- 
vent a  failure  of  justice,  and,  while  the  giving  of  instructions  by 
the  court  unasked  is  not  error  if  the  instructions  correctly  pro- 
pound the  law,  still  the  practice  is  condemned.1  Any  opinion  as 
to  the  weight,  effect,  or  sufficiency  of  the  evidence  submitted  to 
the  jury,  or  any  assumption  of  a  fact  as  proved,  is  generally  re- 
garded as  an  invasion  of  the  province  of  the  jury,  and  observa- 
tions and  instructions  as  to  the  weight  to  be  given  to  the  oral 
evidence  is  ground  for  reversal.2 

The  duty  of  charging  the  jury  generally  is  regarded  in  Vir- 
ginia as  a  burden  which  counsel  cannot  impose  upon  the  court. 
"It  has  not  been  the  practice  in  Virginia,  as  in  England,  for  the 
courts  to  charge  the  jury  upon  the  law  of  the  case,  and  it  is  not 
error  to  refuse  to  give  such  charge,  or  to  refuse  to  instruct  gen- 
erally upon  the  law  of  the  case.  If  either  party  desire  any  spe- 
cific instruction  to  be  given,  he  has  the  right  to  ask  it,  and  the 
court  is  bound  to  give  it,  provided  it  expounds  the  law  correctly 
upon  any  evidence  before  the  jury.  A  party  cannot,  by  asking 
for  an  erroneous  instruction,  or,  as  I  apprehend,  by  asking  for 
a  general  instruction,  devolve  upon  the  court  the  duty  of  charg- 
ing the  jury  on  the  law  of  the  case.  See  Rosenbaums  v.  Wee- 
den,  Johnson  &  Co.,  18  Gratt.  785,  799.  As  before  stated,  if  the 
refusal  of  an  erroneous  instruction  asked  for  tends  to  mislead 
the  jury,  a  proper  instruction  should  be  given  in  its  stead,  and  it 
would  be  error  not  to  give  it."3  In  a  late  case4  the  defendant 

1.  Blunt's  Case,  4  Leigh  689;   Dejarnette's  Case,  75  Va.  867. 

2.  Tyler  v.  Ches.   &  O.   R.  Co.,  88  Va.   389,   13   S.   E.  975;   N.   &  W. 
R.  Co.  v.  Poole,  100  Va.  148,  40  S.  E.  627. 

3.  Womack  v.  Circle,  29  Gratt.  192,  208. 

4.  Ches.  &  O.  R.  Co.  v.  Stock,  104  Va.  97,  51  S.  E.  161. 


§    266  CHARGING   THE    JURY    GENERALLY  501 

asked  certain  instructions,  and  then  presented  the  following  re- 
quest: "The  defendant  prays  the  court  that,  should  the  hypoth- 
esis of  the  facts  whereon  the  several  facts  propounded  by  it 
be  incorrect,  or  should  the  said  instructions  be  inartificially  or  in- 
correctly expressed,  or  should  the  conclusion  of  law  therein  an- 
nounced be  incorrectly  stated,  the  court  will  so  amend  the 
same  as  to  accord  with  the  facts  and  law  of  this  case,  to  the  end 
that  the  jury  may  be  duly  instructed  on  the  phases  of  the  case 
at  bar  presented  by  the  said  instructions."  The  court,  after  ex- 
amining the  authorities,  declares :  "We  know  of  no  authority 
in  this  court,  or  elsewhere,  which  imposes  upon  trial  courts  the 
burden  sought  to  be  placed  upon  them  by  the  'prayer'  under  con- 
sideration." In  discussing  the  subject  of  refusal  of  erroneous 
instructions  the  court  says :  "It  cannot  be  doubted  that,  if  the 
instruction  correctly  states  the  law,  and  there  be  sufficient  evi- 
dence to  support  the  verdict,  it  should  be  given.  It  is  equally 
plain  that  if  it  does  not  correctly  state  the  law,  it  should  not  be 
given.  The  sole  question  is  as  to  the  duty  of  the  court  to  amend 
an  instruction  offered  by  counsel.  The  rule  as  stated  in  Rosen- 
baums  v.  Weeden,  supra,  and  approved  in  numerous  decisions  of 
this  court,  is  that  when  an  instruction  offered  is  equivocal,  so 
that  either  to  give  or  refuse  it  might  mislead  the  jury,  the  duty 
is  imposed  upon  the  court  so  to  modify  it  as  to  make  it  plain; 
that  if  it  be  right,  it  should  be  given ;  if  it  be  wrong,  it  should  be 
rejected :  if  it  be  equivocal,  it  should  be  amended.  By  what  test 
is  a  court  to  measure  the  duty  thus  imposed,  and  how  is  the  jury 
to  be  misled  by  an  instruction  which  the  court  declines  to  give? 
An  equivocal  instruction  of  course  should  not  be  given,  because 
an  equivocal  instruction  is  an  inaccurate  expression  of  the  law, 
and  for  that  reason  should  be  refused.  To  say  that  a  jury  may 
be  misled  by  a  refusal  to  give  an  instruction,  and  therefore  the 
instniction  should  be  amended  and  given,  is  to  prescribe  a  rule  so 
vague  and  indefinite  as  to  embarrass  rather  than  to  assist  trial 
courts  in  the  performance  of  their  duty.  It  is  the  duty  of  juries 
to  respect  the  instructions  given  them.  It  is  not  to  be  supposed 
that  they  have  any  knowledge  with  respect  to  those  which  the 
court  refuses  to  give ;  and  finally,  if  it  be  conceded  that  the  offer 
of  instructions,  their  discussion,  and  the  judgment  of  the  court 
upon  them,  take  place  in  the  presence  of  the  jurors,  it  is  an  im- 


502  INSTRUCTIONS  §    266 

peachment  of  their  integrity,  or  of  their  intelligence,  to  assume 
that  they  were  influenced  or  misled  by  what  has  occurred." 

There  is  room  for  difference  of  opinion  as  to  the  last  statement 
in  the  foregoing  quotation.  It  is  easily  conceivable  that  cases 
may  arise  where,  without  impeaching  either  the  integrity  or  the 
intelligence  of  the  jury,  they  may  be  influenced  or  misled  by  a 
refusal  to  instruct  on  a  given  point,  or  to  correct  an  equivocal 
or  erroneous  instruction.  While  in  practice  instructions  are 
generally  discussed  out  of  the  hearing  of  the  jury,  still  it  not  un- 
frequently  happens  that  disagreement  between  counsel  in  the 
midst  of  the  argument  necessitates  a  request  for  an  instruction 
in  the  presence  of  the  jury  and,  as  said  in  another  case,  "While 
the  language  used  in  each  of  the  instructions  upon  one  point 
was  objectionable  and  they  could  not  have  been  given  as  offered, 
the  court  ought  to  have  amended  them;  or,  if  it  rejected  them, 
as  it  did,  it  was  error  to  give  its  own  in  lieu  of  them  without  in- 
structing them  upon  that  point  which  was  a  vital  one  in  the 
case."5  If  the  point  upon  which  the  instruction  is  asked  is  "a 
vital  one,"  the  jury  should  not  be  left  wholly  in  the  dark  as  to 
what  the  law  on  the  subject  is.  If,  for  instance,  in  an  action  for 
malicious  prosecution,  where  conviction  before  a  justice  has 
been  reversed  on  appeal,  the  court  should  be  asked  in  the  presence 
of  the  jury  to  instruct  them  that  such  conviction  was  conclusive 
evidence  of  probable  cause,  and  the  instruction  should  be  couched 
in  such  language  as  to  be  either  erroneous  or  equivocal  in  some 
aspects,  and  the  court  should  simply  refuse  on  that  account  to 
give  it,  the  jury  might,  without  impeaching  either  their  integrity 
or  intelligence,  assume  either  that  such  conviction  was  not  con- 
clusive evidence,  or  was  not  even  prima  facie  evidence,  and  the 
point  being  a  vital  one,  and  one  which  should  terminate  the  case 
at  once,  it  would  seem  to  be  error  not  to  instruct  the  jury  on  the 
point,  when  the  court  could  easily  do  so  without  having  to  charge 
the  jury  at  large.6  Of  course  if,  under  such  circumstances,  the 
jury  nevertheless  find  a  correct  verdict,  the  verdict  would  not  be 
set  aside  simply  because  the  court  failed  to  instruct  the  jury  on 

5.  Bertha  Zinc  Co.  v.  Martin,  93  Va.  806,  22  S.   E.  869. 

6.  Womack    v.    Circle,    29    Gratt.    192;    Ward    v.    Churn,    18    Gratt. 
801,  810. 


§    267  NATURE,    CONSTRUCTION,   ETC.  503 

the  point,  and  if  it  found  an  erroneous  verdict,  the  verdict  would 
be  set  aside  because  contrary  to  the  law  and  the  evidence,  and 
yet  it  is  plain  that  the  erroneous  verdict  was  the  result  of  the 
failure  of  the  court  to  instruct  on  a  "vital  point"  in  the  case,  and 
hence  the  trial  court  should  have  given  a  correct  instruction  on 
the  subject,  and  thus  have  speedily  terminated  the  litigation. 

§  267.  Nature,  construction  and  effect  of  instructions. 

Instructions  must  not  assume  facts  not  admitted,  nor  other- 
wise infringe  on  the  province  of  the  jury  to  weigh  the  evi- 
dence.7 They  must  be  read  in  the  light  of  the  evidence  applica- 
ble to  the  issues  joined.8  When  given,  they  are  instructions 
of  the  court,  no  matter  by  whom  asked,9  and  must  be  read  as  a 
whole,  and  a  defect  in  one  may  be  corrected  by  a  correct  state- 
ment of  the  law  in  another,  if  the  court  can  see  that  (when  read 
and  considered  together)  the  jury  could  not  have  been  misled 
by  the  defective  instruction.10  All  error,  however,  is  presumed 
to  have  affected  the  verdict,  unless  the  contrary  plainly  ap- 
pears.11 But  if  it  can  be  seen  from  the  whole  record  that,  even 
under  proper  instructions,  a  different  verdict  could  not  have  been 
rightly  found,  the  verdict  will  not  be  set  aside.12  Furthermore,  if, 
upon  the  whole  record,  the  appellate  court  can  see  that  the  jury 
could  not  have  found  a  different  verdict,  it  will  not  stop  to  con- 
sider objections  to  instructions,  nor  will  a  verdict  be  set  aside 
simply  because  it  is  in  accord  with  an  erroneous  instruction  to 

7.  Fishburne  v.  Engledove,  91  Va.  548,  22  S.  E.  354. 

8.  N.  Y.,  etc.,  R.  Co.  v.  Thomas,  92  Va.  606,  24  S.  E.  264;  Richmond 
Granite  Co.  r.  Bailey,  92  Va.  554,  24  S.   E.  232. 

9.  Gray's   Case,   92   Va.   772,   22  S.   E.   858. 

10.  Washington,  etc.,  R.  Co.  v.  Lacey,  94  Va.  460,  26  S.  E.  834; 
Washington,  etc.,  R.  Co.  v.  Quayle,  95  Va.  741,  30  S.  E.  391;  Russell 
Creek  Coal  Co.  -c.  Wells,  96  Va.  416,  31  S.  E.  614;  Kimball  v.  Borden, 
97  Va.  477,  34  S.  E.  45. 

11.  Kimball   r.    Borden.   supra;    Richmond    Traction    Co.    v.    Hilde- 
brand,  99  Va.  48,  34  S.  E.  888;  Richmond,  etc.,  Co.  v.  Allen,  101  Va. 
200,  43   S.   E.  356. 

12.  Winfree  r.  Bank,  97  Va.  83,  33  S.  E.  375;  Southern  Ry.  Co.  v. 
Oliver,  102  Va.  710,  47  S.  E.  862:   Moore  r.  Baltimore  &  O.   R.  Co., 
103  Va.  189,  48  S.  E.  887;  Schwalm  v.  Beardsley,  106  Va.  407,  56  S. 
E.  135. 


504  INSTRUCTIONS  §§  268-269 

which  no  objection  was  made,  if,  upon  the  whole  cause,  there 
appears  to  be  sufficient  evidence  to  warrant  the  verdict.13 

§    268.    Abstract  propositions — partial  view  of  case. 

A  proposition  is  said  to  be  abstract  when  there  is  no  evidence 
to  support  it,  or  the  question  is  outside  of  the  issues.  Instruc- 
tions on  mere  abstract  legal  propositions  are  calculated  to  mis- 
lead the  jury,  and  should  not  be  given.14  So,  likewise,  instruc- 
tions which  ignore  all  the  evidence  on  one  side  of  a  case,  thus 
giving  only  a  partial  view  of  it,  or  which  give  undue  weight  to 
the  evidence  on  one  side,  or  call  special  attention  to  only  a  part  of 
the  evidence  and  the  fact  or  facts  which  they  tend  to  prove,  and 
ignore  other  important  evidence  in  the  case  which,  if  believed, 
ought  to  produce  a  different  result,  are  misleading  and  should 
not  be  given.15 

§    269.    Scintilla  doctrine. 

It  was  formerly  the  settled  law  in  Virginia,  that  "if  an  instruc- 
tion is  asked  which  correctly  propounds  the  law,  and  there  is  evi- 
dence tending  to  support  the  hypothetical  case  stated,  to  however 
little  weight  the  evidence  may  appear  to  the  court  to  be  entitled, 
or  however  inadequate,  in  its  opinion,  to  make  out  the  case  sup- 
ported, it  should  be  given."16  And  such,  it  is  said,  is  the  law  of 
Alabama,  Arkansas,  Illinois,  Georgia,  Indiana,  Maryland,  Iowa, 

13.  Collins  v.  George,  102  Va.  509,  46  S.  E.  684;  Watts  v.  N.  &  W. 
Ry.  Co.,  39  W.   Va.   196,  19   S.   E.   521;    Richmond   Passenger  Co.   v. 
Allen,  103  Va.  532,  49  S.   E.  656. 

14.  Easley  v.  Valley  Mut.  Life  Assn.,  91  Va.  161,  21  S.  E.  235;  B.  & 
O.  R.  Co.  v.  Few,  94  Va.  82,  26  S.  E.  406;  Seaboard  R.  Co.  v.  Hickey, 
102  Va.  394,  46  S.  E.  392. 

15.  N.  Y.,  etc.,  R.  Co.  v.  Thomas,  92  Va.  606,  24  S.  E.  264;   Hans- 
brough   v.    Neal,    94   Va.    722,   27    S.    E.    593;    Kimball   v.    Borden,    95 
Va.  203,  28  S.  E.  207;   N.  Y.,  etc.,  Ins.  Co.  v.  Taliaferro,  95  Va.  522, 
28  S.  E.  879;  Montgomery's  Case,  98  Va.  852,  37  S.  E.  1;  Gatewood  v. 
Garrett,  106  Va.  552,  56  S.   E.  335;  Carlin  &  Co.  v.   Eraser,   105  Va. 
216,  53  S.   E.   145;  Amer.   L.  Co.  -v.  Whitlock,   109  Va.  238,   63   S.   E. 
991.     This  is  an  important  case  and  quite  full  on  various   questions 
relating  to  instructions. 

16.  Reusens  v.  Lawson,  96  Va.  285,  31  S.  E.  528. 


§§   270-271  CONFLICTING    INSTRUCTIONS  505 

Missouri,  Nebraska,  Ohio,  South  Carolina  and  Texas.17  In  a 
very  recent  case  the  Court  of  Appeals  of  Virginia  says :  "It  is 
true  that  what  is  known  as  the  scintilla  doctrine,  has  heretofore 
prevailed  in  this  State,  by  force  of  which  courts  have  been  re- 
quired to  give  instructions  though  the  evidence  by  which  they 
were  to  be  supported  was  such  that  a  verdict  founded  upon  it 
could  not  be  sustained.  In  other  words,  a  trial  court  might,  un- 
der what  is  known  as  the  scintilla  doctrine,  be  reversed  for  fail- 
ure to  give  an  instruction  which  rightly  propounded  the  law,  and 
then  be  again  reversed  for  sustaining  a  verdict  in  obedience  to 
the  instruction,  because  not  supported  by  sufficient  evidence. 
Such  a  doctrine  does  not  seem  consonant  with  reason,  nor  pro- 
motive  of  good  results  in  the  administration  of  justice."  And 
thus  this  "heir-loom,"  which  has  been  treasured  for  more  than  a 
century,  has  been  cast  aside  not  merely  as  worthless,  but  as  per- 
nicious.18 Since  this  decision,  probably  the  correct  rule  is  that  if 
an  instruction  is  asked  which  correctly  propounds  the  law  it 
should  be  given,  if  there  is  sufficient  evidence  in  the  cause  to  sup- 
port a  verdict  found  in  accordance  therewith.18 

§    270.    Sufficiently  instructed. 

A  jury  is  said  to  be  sufficiently  instructed  when  the  instructions 
already  given  cover  the  points  embraced  in  an  offered  instruction. 
It  is  not  error  to  refuse  further  instructions  when  the  instruc- 
tions already  given  fully  and  fairly  submit  the  case  to  the  jury 
on  the  phases  sought  to  be  presented,  even  although  they  cor- 
rectly state  the  law.20 

§    271.    Conflicting  instructions. 

A  material  error  in  an  instruction,  complete  in  itself,  is  not 
cured  by  a  correct  statement  of  the  law  in  another  instruction. 

17.  11    End.    PI.    &   Pr.    181. 

18.  Ches.  &  O.  R.  Co.  v.  Stock,  104  Va.  97,  51  S.  E.  161,  11  Va.  L. 
Reg.  263,  and  note. 

19.  Amer.  L.  Co.  v.  Whitlock,  109  Va.  238,  63  S.  E.  991. 

20.  Nicholas'  Case,  91  Va.   741,  21  S.   E.  364;  N.   &  W.   Ry.  Co.  v. 
Mills,   91   Va.    613,   22   S.    E.   556;    N.    &   W.    Ry.   Co.   v.    Marpole,   97 
Va.  594,  34  S.   E.  462;   Amer.   L.  Co.  v.  Whitlock,   109  Va.  238,   63   S. 
E.  991. 


506  INSTRUCTIONS  §§  272-273 

The  two  being  in  conflict,  the  verdict  of  the  jury  will  be  set 
aside,  as  it  cannot  be  told  by  which  instruction  the  jury  was  con- 
trolled.21 This  is  undoubtedly  the  general  rule,  but  if,  notwith- 
standing such  conflict,  the  court  can  see  from  the  whole  case  that 
no  other  verdict  could  have  been  properly  found  than  that  which 
the  jury  has  found,  the  verdict  will  not  be  set  aside.22 

§    272.    Conflicting  evidence. 

If  the  evidence  is  conflicting,  instructions  to  meet  the  different 
views  of  the  case  should  be  given,  if  asked.23  This  rule,  how- 
ever, is  subject  to  the  rule  previously  stated  that  the  instructions 
should  not  take  a  partial  view  of  the  evidence,  nor  so  empha- 
size the  evidence  on  one  side  as  to  mislead  the  jury. 

§    273.    Directing  a  verdict. 

If  the  evidence  is  such  that  the  court  would  set  aside  any  ver- 
dict found  thereon  in  favor  of  a  particular  party,  the  great 
weight  of  authority  is  that  the  court  may  direct  a  verdict  against 
such  party,  and  such  is  the  constant  practice  in  the  federal 
courts.24  Such,  however,  has  not  heretofore  been  the  practice 
in  Virginia,  and  it  has  been  held,  even  in  a  criminal  case,  that  it 
is  not  the  practice  to  give  instructions  which  amount  in  substance 
to  telling  the  jury  that  the  evidence  is  not  sufficient  to  convict 
the  prisoner,  and  that  such  instructions  should  not  be  given.25 
In  Virginia  the  practice  has  been  either  to  demur  to  the  evidence 
in  a  proper  case,  or  to  ask  an  instruction  directing  a  verdict  upon 
a  hypothetical  case,  that  is,  to  tell  the  jury  if  they  believe  so  and 
so  their  verdict  should  be  for  the  plaintiff,  or  the  defendant,  as 
the  case  may  be.  The  tendency,  however,  of  modern  cases,  leans 
towards  permitting  the  trial  court  to  direct  a  verdict,  and  it  is 
said  that  "while  directing  a  verdict  is  not  in  accordance  with  the 

21.  Amer.  L.  Co.  v.  Whitlock,  supra, 

22.  Southern  Ry.  Co.  v.  Oliver,  102  Va.  710,  47  S.  E.  862. 

23.  Fishburne  v.   Engledove,  91  Va.  548,  22   S.   E.  354;   Low  Moor 
Iron  Co.  v.  La    Bianca,  106  Va.  83,  55  S.  E.  532. 

24.  Phoenix  Ins.   Co.  v.   Doster,   106  U.   S.  30;   Abbott's  Civil  Trial 
Brief,  375,  ff;  6  Encl.  PI.  &  Pr.  678. 

25.  Montgomery's  Case,  98  Va.  852,  37  S.  E.  1. 


§    274  LAW  AND  FACT  507 

practice  in  this  state,  yet  where  it  appears,  as  in  this  case,  that  no 
other  verdict  could  have  been  properly  rendered,  the  error  was 
harmless,  and  the  judgment  will  not  be  reversed  on  that 
ground.''-0  The  basis  of  the  holding  is  that  the  party  complain- 
ing could  not  have  been  prejudiced  by  the  instruction.  It  is  now 
provided  by  statute  in  Virginia,  however,  "that  in  no  action  tried 
by  a  jury  shall  the  trial  judge  give  to  the  jury  a  peremptory  in- 
struction directing  what  verdict  the  jury  shall  render."27 

§    274.    Law  and  fact. 

Generally  the  court  determines  questions  of  law  and  the  jury 
questions  of  fact,  and  the  jury  are  bound  by  the  law  as  laid 
down  by  the  court.  If,  however,  the  verdict  is  correct,  it  will 
not  be  set  aside  merely  because  the  trial  court  erroneously  in- 
structed the  jury.28  It  is  error  to  refer  a  question  of  law  to  the 
jury.29  In  one  case  the  court  said:  "It  is  a  duty  which  the 
court  owes  to  its  own  self-respect,  as  well  as  to  the  speedy  ad- 
ministration of  justice,  not  to  allow  counsel  to  discuss  before  the 
jury  the  same  matter  which  has  already  been  decided  by  it."30 
In  another  case,31  the  court  quotes  with  approval  the  following 
language  by  Mr.  Justice  Story  in  United  States  v.  Battiste,  2 
Sumn.  240 :  "My  opinion  is  that  the  jury  are  no  more  judges  of 
the  law  in  a  capital  or  other  criminal  case,  upon  the  plea  of  not 
guilty,  than  they  are  in  every  civil  case  tried  upon  the  general 
issue.  In  each  of  these  cases,  their  verdict,  when  general,  is 
necessarily  compounded  of  law  and  fact,  and  includes  both.  In 
each  they  must  necessarily  determine  the  law  as  well  as  the 

26.  Hargrave  v.  Shaw  Land  Co.,  Ill  Va.  84,  68  S.   E.  278;  Taylor 
v.  B.  &  O.  R.  Co.,  108  Va.  817,  62  S.   E.  798. 

27.  Acts  1912,  ch.  27,  p.  52. 

28.  Collins   v.    George,    102    Va.    509,   46    S.    E.    684;    11    Encl.    PI.    & 
Pr.  59. 

29.  For  example,  whether  or  not  an  alteration  in  a  written  instru- 
ment is  material  is  a  question  of  law,  but  whether  or  not  it  was  made 
is  a  question  of  fact.     Keene  v.  Monroe,  75  Va.  424;  People  v.  Alton 
(111.),  56  L.  R.  A.  95.     For  further  illustration,  see  Houff  v.  German 
Ins.  Co.,  110  Va.  585,  66  S.   E.  831. 

30.  Delaplane  v.  Crenshaw,  15  Gratt.  457. 

31.  Brown  r.  Com.,  86  Va.  466,  10  S.  E.  745. 


508  INSTRUCTIONS  §    274- 


fact.  In  each  they  have  the  physical  power  to  disregard  the 
as  laid  down  to  them  by  the  court.  But  I  deny  that,  in  any  case, 
civil  or  criminal,  they  have  the  moral  right  to  decide  the  law  ac- 
cording to  their  own  notions  or  pleasure.  On  the  contrary,  it  is 
the  duty  of  the  court  to  instruct  the  jury  as  to  the  law,  and  it 
is  the  duty  of  the  jury  to  follow  the  law  as  it  is  laid  down  by  the 
court."32 

Foreign  lazus.  Foreign  laws,  or  the  laws  of  other  states,. 
though  regarded  as  facts  to  be  proved  as  other  facts,  are  to  be 
interpreted  and  their  effect  declared  by  the  court.33 

Written  Instruments.  It  is  the  duty  of  the  court,  and  not  of 
the  jury,  to  construe  all  written  instruments,  and  an  instruction 
giving  the  court's  construction  of  such  instruments  is  no  inva- 
sion of  the  province  of  the  jury.34 

Court's  Opinion,  on  the  Evidence.  In  England,  in  the  Fed- 
eral courts,  and  in  some  of  the  State  courts,  where  not  prohib- 
ited, the  court  may  express  its  opinion  as  to  the  weight  of  the 
evidence,  or  any  part  thereof,  but  the  decided  weight  of  author- 
ity is  against  thus  infringing  upon  the  province  of  the  jury,  and, 
even  where  it  is  allowed,  the  court  must  be  careful  to  state  to- 
the  jury  that  they  are  the  sole  judges  of  the  facts,  and  not  in 
any  way  bound  by  the  opinion  of  the  court  as  to  what  facts  are 
established  by  the  evidence.  It  is  said  that,  while  the  judge  may 
sum  up  the  facts  to  the  jury  and  express  an  opinion  upon  them, 
he  should  take  care  to  separate  the  law  from  the  facts  and  leave 
the  latter  in  unequivocal  terms  to  the  judgment  of  the  jury.85 
In  Virginia,  no  such  expressions  of  opinion  are  allowed,  and  if 
made  they  will  vitiate  the  verdict.36 

32.  Newport    News,    etc.,    R.    Co.   v.    Bradford,    100    Va.    231,   40   S. 
E.  900. 

33.  Union  Cent.  Life  Ins.  Co.  v.  Pollard,  94  Va.  146,  26  S.  E.  421. 
But   see  1   Gr.   Ev.    (16   Ed.),   §   81-g. 

34.  Burke  v.   Lee,  76  Va.  386;   Pettyjohn  v.   Bank,  101  Va.   Ill,  45 
S.  E.  203. 

35.  Starr  v.  U.  S.,  163  U.  S.  614;  11  End.  PI.  &  Pr.  91-93. 

36.  Fishburne  v.  Engledove,  91  Va.  548,  22  S.  E.  354;   N.  &  W.  R. 
Co.  v.  Poole,  100  Va.   148,  40  S.   E.  627. 


§§  275-276  TIME  OF  GIVING  509 

§  275.    Oral  or  written. 

In  the  absence  of  statute,  instructions  may  be  oral,  or  in  writ- 
ing, or  partly  one  and  partly  the  other.  When  statutes  exist  they 
are  generally  held  to  be  mandatory,  and  apply  to  explanations 
and  modifications  as  well  as  to  the  original  instruments.37  In 
Virginia  we  have  no  statute  on  the  subject,  but  the  practice  is  to 
give  all  instructions  in  writing. 

§    276.    Time  of  giving. 

The  time  of  giving  instructions  is  regulated  by  statute  in  some 
states,  and,  where  so  regulated,  that  time  should  be  observed, 
but,  in  the  absence  of  statute,  it  rests  in  the  sound  discretion  of 
the  trial  court.  Unless  there  is  some  good  reason  to  the  con- 
trary, they  should  be  applied  for  and  given  before  argument,  for 
in  this  way  much  bad  law  and  useless  discussion  is  kept  from  the 
jury.  Developments,  however,  may  render  it  proper,  if  not 
necessary,  to  give  instructions  during  a  concluding  argument,  or 
even  after  the  jury  has  retired  to  consider  its  verdict.  Certainly 
they  may  be  then  given  by  the  court  on  a  request  of  the  jury,  but 
generally  it  is  not  allowed  as  a  matter  of  right  at  the  instance  of 
a  party.38 

Order  of  Reading  to  Jury. — In  West  Virginia,  the  statute  not 
only  prescribes  the  time  when  instructions  shall  be  given,  but 
also  the  order  in  which  they  shall  be  read  to  the  jury.  The 
statute  declares:  "All  instructions  shall  be  read  before  the  ar- 
gument to  the  jury  in  the  following  order,  to  wit:  the  instruc- 
tions given  by  the  court  upon  its  own  motion,  if  any,  shall  be 
read  first;  those  given  upon  the  motion  of  the  plaintiff  shall  be 
read  second,  and  in  any  event  before  the  instructions  for  the  de- 
fendant are  read ;  and  those  given  upon  the  motion  of  the  de- 
fendant shall  be  read  last ;  no  instructions  shall  be  read  twice, 
unless  it  is  necessary  to  read  them  after  being  changed  as  pro- 
vided in  section  one  of  this  chapter,  or  upon  special  request  by 

37.  Abbott's   Civil   Trial   Brief,  411-425. 

38.  Williams  v.   Com.,   85   Va.   807,  8   S.   E.   470;   State  v.   Cobbs,  40 
W.  Va.  718,  22  S.  E.  310;  B.  &  O.  v.  Polly,  14  Gratt.  457-8;   Hoge  v. 
Turner,  96  Va.  624,  32  S.  E.  291;  Lewis  v.  Com..  78  Va.  732;  11  Encl. 
PI.   &   Pr.   283-6. 


510  INSTRUCTIONS  §§  277-278 

the  jury."39  This  act  has  been  held  to  be  mandatory,  and  hence 
trial  courts  have  no  discretion  in  the  premises,  but  must  read  in- 
structions in  the  order  named,  or  else  it  is  reversible  error.40  In 
construing  this  act,  it  has  also  been  held  that  if  an  instruction  of- 
fered by  a  party  is  refused  "as  offered,"  and  is  amended  by  the 
court  over  the  objection  of  the  party  offering  it  and  given  in  its 
amended  form,  it  must  be  read  as  an  instruction  given  by  the 
court  upon  its  own  motion,  and  read  in  that  order,  else  it  will  be 
reversible  error,  but  that  the  right  given  by  the  statute  may  be 
waived,  and  will  be  deemed  to  have  been  waived  unless  objection 
is  made  at  the  time  the  instructions  are  read  to  the  jury.41 
There  is  no  such  statute  in  Virginia. 

§    277.    Multiplication  of  instructions. 

The  Court  of  Appeals  of  Virginia  has  more  than  once  warned 
against  the  multiplication  of  instructions.42  In  a  recent  case  it 
repeats  the  caution,  saying  that  the  practice  of  asking  for  a  great 
number  of  instructions  in  cases  which  involve  few  law  questions 
has  grown  up  in  recent  years,  and,  instead  of  aiding  the  juries  in 
reaching  right  conclusions,  tends  to  mislead  and  confuse  them, 
and  imposes  a  heavy  and  unnecessary  burden  upon  trial  courts.43 

§    278.    Find  for  the  plaintiff. 

An  instruction  which  concludes  with  a  direction  to  the  jury 
to  "find  for  the  plaintiff"  or  "find  for  the  defendant,"  as  the  case 
may  be,  should  state  a  complete  case,  and  embrace  all  elements 
necessary  to  support  a  verdict.  It  should  also  be  based  upon  the 
evidence  in  the  case,  and  not  be  partial,  nor  omit  all  reference 

39.  Acts  W.   Va.    (1907),  ch.   38,  §  5,  p.  224. 

40.  State  v.  Clark,  64  W.  Va.  625,  63  S.   E.  402;  State  v.  Huffman 
(W.  Va.  Jan.   12,   1912),  73   S.   E.  292,   295. 

41.  See   cases  cited  in  last  note. 

42.  Bright  Hope  R.  Co.  v.  Rogers,  76  Va.  454;  Newport  News  Co. 
v.  Beaumeister,  102  Va.  677,  43  S.  E.  821;  Wallen  v.  Wallen,  107  Va. 
131,  57  S.  E.  596. 

43.  Seaboard  R.  Co.  v.  Vaughan,  104  Va.  116,  119,  51  S.   E.  452. 


§§    279-280  HOW    INSTRUCTIONS    ARE    SETTLED  511 

to  material  evidence  in  the  case.44  If  the  evidence  be  such  that 
if  the  jury  believe  one  state  of  facts,  they  should  find  for  the 
plaintiff,  and  if  they  believe  another  state  of  facts,  they  should 
find  for  the  defendant,  then  the  instruction  should  be  given  in  the 
alternative. 

§    279.    Inviting  error. 

A  party  cannot  complain  of  an  erroneous  instruction  given  at 
his  instance.  He  cannot  invite  the  court  to  commit  an  error, 
and  then  complain  of  it.  He  is  estopped  from  making  such  an 
objection.45 

§    280.    How  instructions  are  settled. 

After  the  evidence  is  all  in,  the  court  usually  affords  counsel 
an  opportunity  to  prepare  such  instructions  as  they  may  desire 
to  offer.  Counsel  on  each  side  thereupon  prepare  such  instruc- 
tions as  they  think  necessary  or  proper  to  present  their  views  of 
the  law  to  the  jury.  The  argument  on  these  instructions  is  gen- 
erally heard  in  chambers,  away  from  the  presence  of  the  jury. 
Counsel  repaip  to  such  place  as  the  judge  may  designate  to  hear 
argument  on  the  instructions.  Usually  counsel  for  the  plaintiff 
will  read  such  instructions  as  he  desires  the  court  to  give,  and 
then  counsel  for  the  defendant  reads  the  instructions  he  has  pre- 
pared. Generally,  counsel  for  the  plaintiff  will  then  argue  be- 
fore the  court  his  ground  for  thinking  that  the  instructions  ten- 
dered by  him  should  be  given,  and  the  objections,  if  any,  which 
he  has  to  the  instructions  tendered  by  counsel  for  the  defendant. 
Counsel  for  the  defendant  then  makes  his  argument  in  support 
of  his  own  instructions,  and  points  out  and  argues  the  objections 
which  he  has  to  instructions  tendered  by  the  plaintiff.  To  this 
argument  counsel  for  the  plaintiff  generally  replies.  The  whole 

44.  Sun   Life   Assurance   Co.  v.    Bailey,   101  Va.   443,   44   S.   E.   692; 
Wright  v.  Agelasto,   104  Va.  159,  51   S.   E.   191;   Vaughan   Mach.  Co. 
r.   Stanton  Co.,  106  Va.  445,  56  S.   E.  140;   So.   Ry.   Co.  v.  Blanford, 
105  Va.  373,  54   S.   E.   1;   Life   Ins.  Co.  v.   Hairston,   108  Va.   832,  62 
S.   E.   1057. 

45.  Richmond   Traction   Co.   v.   Clarke,   101   Va.   382,  43   S.    E.   618; 
Bugg  v.  Seay,  107  Va.  648,  60  S.  E.  89. 


512  INSTRUCTIONS  §    280 

process,  however,  is  very  informal.  The  argument  is  before  the 
judge  in  chambers,  and  there  is  no  definite  order  fixed  as  to  who 
shall  open  and  conclude.  This  will  be  regulated  in  large  meas- 
ure by  the  trial  judge.  After  the  arguments  pro  and  con  the 
judge  takes  time  to  consider,  if  he  so  desires,  if  not,  he  will  pass 
on  the  instructions  at  once,  designating  which  he  will  give  and 
which  he  will  refuse,  sometimes  adding  one  or  more  independ- 
ent instructions  of  his  own,  and  frequently  making  some  addi- 
tions to  or  subtractions  from  those  offered  by  counsel.  Instruc- 
tions are  no  part  of  the  record,  and  hence  if  either  party  is 
dissatisfied  with  the  ruling  of  the  court,  either  on  his  own  instruc- 
tions or  on  the  objections  to  the  instructions  of  his  adversary,  or 
to  instructions  given  by  the  court,  or  modifications  of  instructions 
made  by  the  court,  he  states  that  he  excepts  to  the  ruling  of  the 
court  thereon,  and  at  the  proper  time  prepares  and  tenders  his 
bill  of  exception.  A  fair  copy  of  the  instructions  which  the 
court  decides  to  give  is  generally  then  made,  the  court  and  coun- 
sel repair  to  the  court  room,  and  the  court  gives  the  instructions 
to  the  jury,  and  the  trial  proceeds. 


CHAPTER  XXXVI. 
BILLS  OF  EXCEPTION. 

§  281.  Origin  and  purpose  of  bills  of  exception. 

§  282.  How  points  are  saved. 

§  283.  Rejected  evidence. 

§  284.  Competency  of  witnesses. 

§  285.  Form  of  bill  of  exception  where  evidence  is  excluded. 

§  286.  Supplying  defects  by  reference. 

§  287.  Granting  or  refusing  instructions. 

§  288.  Motion  for  new  trial. 

§  289.  Evidence  to  support  an  instruction. 

§  289a.  Verdict  not  supported  by  the  evidence. 

§  290.  Time  and  manner  of  filiner. 

§  291.  Evidence  of  authentication. 

§    281.    Origin  and  purpose  of  bills  of  exception. 

Bills  of  exception  are  wholly  creatures  of  statute.  They  were 
unknown  to  the  common  law  and  were  unnecessary  as  no  writ  of 
error  would  lie  on  rulings  on  questions  of  fact.1  The  record  in 
a  civil  case  "is  made  up  of  the  writ  (for  the  purpose  of  amend- 
ment, if  necessary),  the  whole  pleadings,  papers  of  which  pro- 
fert  is  made  and  oyer  demanded,  and  such  -as  have  been  spe- 
cially submitted  to  the  consideration  of  the  court  by  a  bill  of  ex- 
ception, a  demurrer  to  the  evidence,  or  a  special  verdict,  or  are 
inseparably  connected  with  some  paper  or  evidence  so 'referred 
to.  These,  with  the  several  proceedings  at  the  rules,  or  in  the 
court,  until  the  rendition  of  the  judgment,  constitute  the  record 
in  common  law  suits,  and  are  to  be  noticed  by  the  court,  and  no 
others."2  It  will  be  observed  that  this  record  is  a  mere  skele- 
ton, and  gives  nothing  of  the  interesting  details  of  a  trial.  It 
contains  none  of  the  evidence  nor  the  rulings  of  the  trial  court 
on  its  acceptance  or  rejection.  It  does  not  contain  the  instruc- 

1.  Battershall   v.   Roberts,    107   Va.   269,   58   S.    E.   588;   3    Encl.    PI. 
&  Pr.  378. 

2.  White  f.  Toncray,  9  Leigh  351,  cited  and  approved  in  Roanoke, 
etc.,    Co.   r.    Karn,    80    Va.    589. 

—33 


514  Bins  OF  EXCEPTIONS  §  282 

tions  of  the  court,  nor  the  rulings  of  the  court  in  matters  affecting 
the  alleged  misconduct  of  the  parties  or  their  counsel,  or  of  third 
persons,  nor  of  the  jury.  If  any  of  these  matters  are  to  be  made 
a  ground  of  complaint  in  the  appellate  court,  they  must  be  made 
a  part  of  the  record  of  the  trial  court,  and  the  method  of  doing 
this  is  by  a  bill  of  exception.  Of  course,  no  bill  of  exception  is 
necessary  to  introduce  a  matter  already  a  part  of  the  record.  If 
the  record  sufficiently  shows  a  fact,  for  instance,  that  -a  motion 
was  made  to  require  a  bill  of  particulars,  either  of  the  plaintiff's 
claim  or  the  defendant's  grounds  of  defence,  and  was  overruled, 
no  bill  of  exception  is  necessary,  as  the  order  showing  the  ruling 
of  the  court  is  in  the  nature  of  a  judgment,  and  is  per  se  a  part 
of  the  record.3  The  object  of  the  bill  is  to  put  that  into  the  re- 
cord which  would  not  otherwise  be  there,  or  appear.  The  mere 
copying  of  instructions  into  the  record  by  the  clerk,  however, 
will  not  suffice.  The  noting  at  intervals  in  stenographic  notes  that 
objections  to  questions  were  made  and  overruled,  and  exceptions 
taken,  is  not  sufficient.  There  must  be  a  bill  of  exception  signed 
by  the  judge.4  ,  The  rule  is  otherwise  in  West  Virginia.5  Nor 
will  the  bill  be  dispensed  with,  although  counsel  so  stipulate  in 
writing.6 

The  office  of  the  bill  is  "to  set  forth  a  specific  and  definite  al- 
legation of  error,  and  so  much  of  the  evidence  as  is  necessary 
to  a  clear  apprehension  of  the  propriety  or  impropriety  of  the 
ruling  made  by  the  court."  7 

Two  or  more  points  may  be  saved  in  one  bill  if  they  are  dis- 
tinctly set  forth  with  necessary  circumstantiality,  but  the  better 
practice  is  to  file  a  separate  bill  for  each  point  saved.8 

§    282.    How  points  are  saved. 

The  trial  of  a  case  is  not  ordinarily  stopped  in  order  to  pre- 

3.  Driver  v.   So.    R.    Co.,    103   Va.    650,   49    S.    E.    1000;    Blue    Ridge 
L.  &  P.  Co.  v.  Tutwiler,  106  Va.  54,  55  S.  E.  539. 

4.  N.  &  W.  v.  Shott,  92  Va.  34,. 22  S.  E.  811. 

5.  Kay  v.  Glade  Creek  &  R.  R.  Co.,  47  W.  Va.  467,  35  S.  E.  973. 

6.  Kibler  v.  Com.,  94  Va.   804,  26  S.   E.  858. 

7.  Holleran  v.   Meisel,  91  Va.  143,  21  S.   E.  658. 

8.  Holleran  v.  Meisel,  supra',  N.  &  W.  v.  Shott,  supra. 


§  283  REJECTED  EVIDENCE  515 

pare  the  bill  of  exception.  There  are  several  good  reasons  for 
this.  One  is  to  save  delay,  and  another  is  that  the  case  may  be 
decided  in  favor  of  the  party  filing  the  bill  of  exception,  and 
then  he  would  not  need  a  bill — being  content  with  the  verdict. 
When  a  question  is  asked  which  is  objected  to,  the  party  simply 
says,  "I  Object,"  and  assigns  his  reasons  for  his  objection,  and 
if  the  trial  court  decides  adversely  to  him,  he  says,  "I  wish  to 
save  the  point,"  or,  "I  except.'-  A  <hote  of  this  is  taken  and  kept 
until  after  the  trial  is  over.  The  bill  is  then  written  out  and  pre- 
sented to  the  judge  for  his  signature.  The  usual  course  of  pro- 
cedure is  for  the  party  filing  the  bill  to  write  it  out  in  full  and 
tender  it  to  the  counsel  on  the  other  side  for  his  inspection.  If 
the  latter  agrees  that  the  bill  fairly  states  the  case,  he  assents 
to  it,  and  usually  the  judge  signs  it  without  more.  If  he  objects, 
and  the  counsel  cannot  agree  among  themselves  upon  points  con- 
nected with  the  bill,  the  points  of  difference  are  submitted  to  the 
judge,  and  he  decides  them,  and  the  bill  is  made  up  in  accord- 
ance with  his  rulings.9 

§    283.    Rejected  evidence. 

The  evidence  in  an  action  at  law  is  no  part  of  the  record, 
hence  if  it  is  desired  to  make  it  a  part  of  the  record,  a  bill  of 
exception  is  necessary.  When  the  exception  is  taken  to  the  re- 
jection of  evidence,  the  bill  should  recite  so  much  of  the  evidence 
already  adduced  as  will  show  the  relevancy  and  pertinency  of  the 
question  asked.  If  the  question  is  answered,  the  answer  should 
be  given,  because  the  witness  might  answer  that  he  knew  nothing 
on  the  subject,  and  this  would  show  that  the  question  was  im- 
material. If  no  answer  is  given,  then  the  bill  should  state  what 
the  exceptor  expects  to  prove  by  the  witness.  This  is  generally 
done,  after  reciting  so  much  of  the  evidence  as  is  pertinent,  by 
stating  that  the  exceptor,  with  a  view  to  proving  such  and  such 
facts,  asked  the  witness  the  following  questions.  If  the  excep- 
tion is  taken  because  evidence  has  been  received  which  it  is 
thought  ought  not  to  have  been  received,  the  bill  of  exception 

9.  Page  r.  Clopton,  30  Gratt.  415. 


516  BILLS  OF  EXCEPTION  §§  284-286 

should  clearly  point  out  in  what  respect  the  evidence  is  objec- 
tionable.10 

§    284.    Competency  of  witnesses. 

"When  a  witness  is  rejected  on  account  of  his  incompetency, 
it  is  not  necessary  in  the  bill  of  exception  to  state  what  it  is  ex- 
pected to  prove  by  him.  The  objection  to  his  competency  im- 
plies materiality,  and  that  he  is  adverse."11 

§    285.    Form  of  bill  of  exception  where  evidence  is  ex- 
cluded. 

Be  it  remembered,  that  on  the  trial  of  this  case  the  plaintiff, 
in  order  to  maintain  the  issue  on  his  part,  introduced  as  a  witness 
John  Smith,  who  testified  as  follows  '(here  insert  his  evidence 
in  chief),  and  thereupon  the  said  John  Smith  was  turned  over 
to  the  defendant's  counsel  for  the  purpose  of  cross  examination, 
and  the  defendant  by  his  counsel,  with  the  view  to  showing  the 
bias  and  prejudice  of  the  witness,  propounded  to  him  the  follow- 
ing question:  "Is  not  your  wife  the  sister  of  Ira  Jones  the 
plaintiff  in  this  case?"  but  the  plaintiff,  by  his  counsel,  objected 
to  any  answer  being  given  to  said  question,  which  objection  was 
sustained  by  the  court,  to  which  action  of  the  court  in  sustain- 
ing said  objection  and  in  refusing  to  permit  the  witness  to  answer 
said  question,  the  said  defendant  excepts,  and  prays  that  this,  his 
bill  of  exception  No.  1  may  be  signed,  sealed  and  enrolled  as  a 
part  of  the  record,  which  is  done  accordingly. 

(Seal.) 

§    286.    Supplying  defects  by  reference. 

In  the  absence  of  a  statute  permitting  a  different  course  each 
bill  of  exception  must  be  complete  in  itself,  and  one  bill  cannot 

10.  Union   Central   Life    Ins.   Co.   v.    Pollard,   94   Va.   146,  26   S.    E. 
421;  Driver  v.  Hartman,  96  Va.  518,  31  S.   E.  899;  Clark  v.  Sleet,  99 
Va.  381,  38  S.  E.  183;  Nease  z'.  Capehart,  15  W.  Va.  299;   Snooks  v. 
Wingfield,   52   W.   Va.   441,   44   S.   E.   277. 

11.  Mutual   Ins.   Co.  v.   Oliver,  95   Va.   445,  28   S.   E.  594;   Martz  v. 
Martz,  25  Gratt.  367;  Metz  v.  Snodgrass,  9  W.  Va.  190. 


§    287  GRANTING    OR    REFUSING    INSTRUCTIONS  517 

be  looked  to  in  order  to  supply  facts  to  support  2,  point  raised 
in  another,  without  reference  from  one  to  the  other,  except  in  a 
very  few  cases.12  If,  however,  all  of  the  evidence  has  been  set 
out  in  one  bill,  that  bill  may  probably  be  looked  to  in  order  to 
support  a  point  made  in  another  bill.13  This  matter,  however, 
is  regulated  by  statute  in  Virginia.14 

§    287.    Granting  or  refusing  instructions. 

Instructions  are  not  per  se  part  of  the  record,  and  objections 
thereto  cannot  be  considered  if  no  bill  of  exception  is  taken.15 
If,  however,  upon  the  trial,  instructions  are  given  to  the  jury, 
to  which  no  exception  is  taken,  and,  after  verdict,  a  motion  is 
made  for  a  new  trial,  on  the  ground  of  misdirection  it  is  the 
duty  of  the  trial  court  to  consider  the  correctness  of  the  in- 
structions, and  if  of  opinion  that  they  are  not  correct  and  were 
calculated  to  mislead  the  jury,  to  set  aside  the  verdict  and  grant 
a  new  trial.  But  if  the  trial  court,  believing  the  instructions  to 
be  correct,  when,  in  fact,  they  were  not,  refuses  to  set  aside  the 
verdict,  and  a  bill  of  exception  is  taken  on  that  ground,  in  which 
the  erroneous  instructions  are  embodied,  the  appellate  court  will 
supervise  the  action  of  the  trial  court  in  this  respect;  and  if  it 
finds  that  the  instructions  were  in  fact  erroneous,  will  set  aside 
the  verdict  and  award  a  new  trial.  The  appellate  court,  how- 
ever, does  not  look  upon  this  method  of  procedure  with  favor, 
and  in  reviewing  the  ruling  of  the  trial  court  will  consider 
whether  under  all  the  circumstances  the  party  complaining  has 
been  prejudiced  by  the  instruction,  and  if  of  opinion  that  a  just 
verdict  has  been  rendered,  will  not  set  it  aside  on  account  of  that 
objection.16 

12.  Hall   v.    Hall,    12    W.    Va.    1. 

13.  Klinkler  v.  Wheeling,  43  W.  Va.  219,  27  S.  E.  237. 

14.  Section  3484a  of  the  Code  is  as  follows:  "Any  evidence  in  the 
record  may  be  considered  by  the  appellate  courts,  if  certified  in  any 
bill  of  exceptions,  as  though  certified  in  each." 

15.  Norfolk  v.  Johnakin,  94  Va.  285,  26  S.   E.  830;  Taylor  v.   Mai- 
lory,  96  Va.  18,  30  S.  E.  472;  Clark  v.  Com.,  90  Va.  360,  18  S.  E.  440; 
Bull  v.  Com.,  14  Gratt.  613;  Stephenson  v.  Wallace,  27  Gratt.  77. 

16.  Stephenson  v.   Wallace,   27   Gratt.   77;    Bull  v.   Com.,   14   Gratt. 
613.      For   other    cases    on    the    subject    of   instructions,    see    note    to 
Womack  v.  Circle,  29  Gratt.  192,  Va.  Rep.  Ann. 


518  BIHS  OF  EXCEPTION  §§  288-289a 


Instructions  copied  into  the  record  when  there  is  no  bill  of 
exception  or  order  of  the  court  referring  to  them,  will  not  be  re- 
garded as  part  of  the  record.17 

§    288.    Motion  for  new  trial. 

Formerly  in  Virginia,  it  was  necessary  to  make  a  motion  for 
a  new  trial,  and  if  that  motion  was  overruled,  to  take  an  excep- 
tion to  the  ruling  of  the  court  thereon  in  order  to  have  the  bene- 
fit of  any  exception  taken  during  the  trial  of  the  case.  At  least, 
it  was  necessary  for  the  record  to  show  that  such  a  motion  was 
made  and  overruled.18  The  reason  assigned  was  that  the  judge 
might,  upon  a  deliberate  motion  for  a  new  trial,  supported  by 
argument  and  authority,  retract  a  hasty  opinion  expressed  by 
him  in  the  progress  of  the  trial.  This  is  still  the  law  in  West 
Virginia,  Arkansas,  and  other  states,19  but  has  been  changed,  in 
Virginia  by  statute.20 

§    289.    Evidence  to  support  an  instruction. 

If  the  objection  is  taken  to  an  instruction,  on  the  ground  that 
there  is  no  evidence  to  support  it,  of  course,  it  will  be  necessary 
to  recite  all  the  evidence  in  the  bill  of  exception  in  order  to  es- 
tablish that  fact. 

§    289a.    Verdict  not  supported  by  the  evidence. 

An  assignment  of  error  merely  stating  that  the  "verdict  is  not 
supported  by  the  evidence"  is  not  entitled  to  notice,  if  it  does  not 
affirmatively  appear  that  the  evidence  in  the  record  is  the  "whole 
evidence  introduced  on  the  trial,21  and  this  is  proper,  as  the  ver- 

17.  Winters  r.   Null,   31   W.   Va.   450,  7   S.   E.   443. 

18.  Central  Land  Co.  v.  Obenchain,  92  Va.  130,  22  S.  E.  876. 

19.  Danks    v.    Rddeheaver,    26    W.    Va.    274;    Young    v.    King,    33 
Ark.  745. 

20.  Section  3385a  of  the  Code  is  as  follows:    "The  failure  to  make 
a  motion   for   a   new  trial   in   any   case   in   which   an   appeal,  writ   of 
error,  or  supersedeas  lies  to  a  higher  court   shall   not  be  deemed  a 
waiver  of  any  objection  made  during  the  trial   if  such   objection   be 
properly  made  a  part  of  the  record." 

21.  Oswego  v.  Traveller  Ins.  Co.,  70  Fed.  225.  17  C.  C.  A.  77;  Bank 
v.  Berkeley,  3  W.  Va.  386. 


§   290  TIME  AND   MANNER  OF  FILING  519 

diet  should  be  presumed  to  be  supported  by  the  evidence  until 
the  contrary  appears. 

§  290.    Time  and  manner  of  filing. 

As  hereinbefore  stated,  bills  of  exception  were  unknown  to 
the  common  law,  and  are  wholly  of  statutory  origin.  The  time 
and  manner  of  their  filing  are,  therefore,  to  be  determined  from 
the  statute.  If  the  statute  simply  allows  a  bill  of  exception  to 
be  taken  to  the  rulings  of  the  trial  court  and  fixes  no  time  when 
this  may  be  done,  it  must  be  done  before  the  adjournment  of  the 
term  at  which  the  final  judgment  is  entered.  When  the  final 
judgment  is  entered  and  the  term  ended,  the  record  is  closed  and 
nothing  can  be  added  to  it  except  by  express  statutory  provi- 
sion. The  signing  of  a  bill  of  exceptioVi  so  as  to  make  it  a  part 
of  the  record  is  a  judicial  act,  and  must  be  performed  within 
the  time,  if  any,  prescribed  by  the  statute.  If  none  is  prescribed, 
then  it  must  be  signed,  as  stated,  before  the  adjournment  of  the 
term  at  which  final  judgment  is  entered.  The  power  of  the 
judge  to  sign  is  derived  from  and  measured  by  the  statute.  The 
leave  of  the  court  with  the  consent  of  the  parties,  though  both 
be  entered  of  record,  cannot  confer  upon  the  court  or  the  judge 
authority  to  sign  a  bill  at  any  other  time  than  that  fixed  by  stat- 
ute. The  question  is  jurisdictional,  and  a  bill  of  exception  not 
signed  at  the  time  prescribed  by  the  statute  is  no  part  of  the  rec- 
ord, and  cannot  be  considered  by  the  appellate  court  on  a  writ 
of  error.22 

The  Virginia  statute23  provides  "that  bills  of  exception  may 
be  tendered  to  the  judge  and  signed  by  him  either  during  the 
term  at  which  the  opinion  of  the  court  is  announced  to  which 
exception  is  taken,  or  within  thirty  days  after  the  end  of  such 
term,  either  in  term  time  or  vacation,  whether  another  term  of 
said  court  has  intervened  or  not,  or  at  such  other  time  as  the  par- 
ties, by  consent  entered  of  record,  may  agree  upon,  and  any  bills 
of  exception  so  tendered  to  and  signed  by  the  judge,  as  aforesaid, 
either  in  term  time  or  in  vacation,  shall  be  a  part  of  the  record 
of  the  case.  The  same  rule  shall  apply  when  cases  are  heard  or 

22.  Va.  Dev.  Co.  v.  Rich  Patch  Iron  Co.,  98  Va.  700,  37  S.  E.  280. 

23.  Code,  vol.   3,   §   3385. 


520  BII4.S  OP  EXCEPTION  §   290 

opinions  are  rendered  in  vacation,  in  which  case  the  party  ex- 
cepting shall  have  thirty  days  from  the  day  that  such  opinion  is 
rendered."  The  act  is  applicable  to  criminal  cases  as  well  as 
civil. 

Under  this  statute,  if  the  time  of  signing  is  postponed  beyond 
thirty  days,  consent  to  that  effect  must  be  entered  of  record  as  a 
part  of  the  final  order  of  the  court,  else  the  exception  is  not  well 
taken,  and  the  bill  is  no  part  of  the  record.  "The  court  cannot, 
on  the  mere  motion  of  the  exceptor,  and  without  such  consent 
entered  of  record,  postpone  from  term  to  term  the  signing  of 
such  bills.  A  memorandum  signed  by  counsel  on  both  sides,  and 
annexed  to  bills  of  exception  filed  several  terms  thereafter,  to 
the  effect  that  such  bills  of  exception  'have  been  examined  and 
agreed  to/  is  not  sufficient.  The  signing  of  bills  of  exception 
SO  as  to  make  them  a  part  of  the  record  is  a  judicial  act  of  purely 
statutory  origin,  and  the  provisions  of  the  statute  must  be  strictly 
observed."24  If  a  bill  of  exception  is  signed  more  than  thirty 
days  after  the  adjournment  of  the  court,  it  can  only  be  done  by 
consent  of  the  parties  entered  of  record;  and  although  the  par- 
ties may  have  consented  to  the  signing,  if  the  record  does  not 
show  such  consent,  the  bill  cannot  be  considered,  nor  can  the  fact 
that  the  consent  was  given  at  the  time  be  shown  (unless  allowed 
by  statute)  by  a  nunc  pro  tune  order.  So  stringent  is  the  rule 
that  it  has  been  applied  in  a  criminal  case  where  the  prisoner 
was  under  sentence  of  death.  The  court  says :  "The  authority 
of  a  judge  to  sign  bills  of  exception  after  the  lapse  of  more  than 
thirty  days  after  the  end  of  the  term  at  which  the  opinion  of  the 
court  is  announced  to  which  exception  is  taken  rests  upon  con- 
sent, and  that  consent  must  appear  of  record.  It  is  of  the  very 
essence  of  his  jurisdiction,  and  without  it  the  judge  has  no  au- 
thority or  power  to  act.  An  order,  made  during  the  term,  that 
'the  prisoner  is  allowed  sixty  days  from  the  adjournment  of  this 
court  within  which  to  file  his  bills  of  exception/  but  which  fails 
to  show  that  the  sixty  days  was  agreed  upon  and  entered  of  rec- 
ord by  consent  of  parties  is  wholly  ineffectual  to  extend  the  time 
beyond  the  thirty  days  fixed  by  statute.  Nor  has  the  trial  court 
any  power,  after  the  adjournment  of  the  term  at  which  a  final 

24.  Battershall  v.  Roberts,   107   Va.   269,   58   S.   E.   588. 


§    290  TIME  AND   MANNER  OF  FlUNG  521 

order  is  entered,  to  amend  its  final  order  so  as  to  show  that  the 
sixty  days  was  in  fact  agreed  upon  and  to  be  entered  of  record 
by  consent  of  parties. 

"During  the  term  of  the  court  at  which  a  judicial  act  is  done, 
the  record  remains  in  the  breast  of  the  court,  and  may  be  al- 
tered or  amended;  but,  after  the  adjournment  of  the  term, 
amendments  can  only  be  made  in  cases  in  which  there  is  some- 
thing in  the  record  by  which  they  can  be  safely  made.  Amend- 
ments cannot  be  made  after  the  adjournment  of  the  term,  upon 
the  individual  recollection  of  the  judge,  or  upon  evidence  ali- 
ttnde."25 

It  has  been  further  held,  under  the  above  statute,  that  bills  of 
exception  signed  in  vacation  and  within  thirty  days  after  the  end 
of  the  term  at  which  final  judgment  is  rendered  are  within  the 
time  prescribed  by  the  statute.  They  are  not  required  to  be 
filed  at  the  term  at  which  an  adverse  ruling  is  made,  nor  within 
thirty  days  thereafter.26 

In  a  case  in  which  a  writ  of  error  lies,  a  party  has  a  right  to 
a  bill  of  exception  to  the  ruling  of  the  trial  court  if  the  truth 
of  the  case  be  fairly  stated  therein,  and  if  the  judge  refuses  to 
sign  such  a  bill,  he  may  be  compelled  to  sign  it  by  a  mandamus, 
but  if  a  party  accepts  a  bill  as  signed  by  the  judge,  he  cannot 
thereafter  question  its  correctness.27 

The  making  of  a  bill  of  exception  is  a  judicial  act  and  the 
power  to  make  it  cannot  be  delegated.  A  trial  judge  cannot 
sign  a  skeleton  bill  of  exception  and  direct  the  clerk  to  insert  all 
the  evidence  introduced  on  both  sides  "as  appears  from  the  ste- 
nographer's report  thereof."  The  evidence  inserted  must  be  in 
some  way  identified  or  earmarked  by  the  judge  under  his  own 
hand,  otherwise  it  is  not  part  of  the  bill,  and  cannot  be  consid- 
ered by  an  appellate  court.28 

It  had  been  held  that  if  the  evidence  was  not  sufficiently  iden- 
tified and  made  a  part  of  the  bill  of  exception  within  the  time 

25.  Wright's  Case,   111  Va.  873,  69  S.   E.  956. 

26.  Manchester  Loan  Ass'n  v.  Porter,  106  Va.  528,  56  S.  E.  337. 

27.  Collins  r.  George,  102  Va.  509,  46  S.  E.  684. 

28.  Thornton  r.  Com..  113  Va. ,  73  S.  E.  481;  Blackwood  Coal 

Co.  v.  James,  107  Va.  656.  60  S.  E.  90;   X.  &  W.   R.  Co.  v.  Rhodes, 
109  Va.   176,  63   S.   E.   445. 


522  BILLS  OF  EXCEPTION  §  290 

prescribed  for  taking  the  bill  the  defect  could  not  be  remedied 
by  a  nunc  pro  tune  order,29  but  at  the  recent  session  of  the  leg- 
islature it  was  enacted  "that  no  case  shall  be  heard  or  decided 
in  the  Court  of  Appeals  on  an  imperfect  or  incomplete  record,  but 
when  said  court  shall  be  of  opinion  that  any  record  or  part 
thereof,  testimony  or  proceeding  has  not  been  properly  identified 
or  certified,  so  as  to  make  it  a  part  of  the  record  in  the  case,  and 
to  bring  it  properly  before  the  appellate  court,  and  that  justice 
may  be  done  by  directing  the  trial  court  to  cure  the  defects  in  the 
record,  it  shall  so  order ;  and  when  the  defects  shall  have  been  so 
cured  it  shall  proceed  with  the  hearing  on  the  merits."30  The 
trial  court  may  now  make  a  mine  pro  tune  order,  under  direc- 
tions from  the  Court  of  Appeals,  and  thereby  cure  a  defect  that 
was  formerly  regarded  as  fatal.  But  it  must  not  be  supposed 
that  this  statute  dispenses  with  the  other  requirements  of  Sec- 
tion 3385  of  the  Code.  The  bill  must  still  be  filed  within  the 
time  prescribed  by  the  statute,  and  possess  the  other  requisites  of 
a  valid  bill  of  exception.  A  nunc  pro  tune  order,  however,  is  an 
order  made  now  causing  the  record  to  show  something  that  was 
in  fact  done  at  a  previous  time,  but  the  doing  of  which  the  record 
fails  to  disclose.  If  no  such  act  was  done  its  omission  cannot 
be  supplied  by  a  nunc  pro  tune  order.31  Whether  the  language 
of  the  act  is  broad  enough  to  cover  the  case  when  the  clerk  fails 
to  enter  on  record  the  agreement  of  counsel  for  the  extension  of 
time  within  which  bills  of  exception  may  be  filed  (when  such  an 
agreement  is  actually  made  and  announced  in  open  court)  is  not 
entirely  free  from  doubt,  but  the  agreement  is  a  part  of  the  "pro- 
ceeding" in  the  cause  which  "has  not  been  properly  identified  and 
certified"  and  is  probably  covered. 

In  Anderson  v.  Com.,  105  Va.  533,  54  S.  E.  305,  it  was  held 
that,  if  the  bill  was  tendered  in  time  but  not  signed  and  re- 
turned in  the  time  prescribed  by  the  statute,  it  was  too  late. 
This  holding  would  not  seem  to  be  sound,  as  the  defendant  had 
certainly  done  everything  that  could  be  reasonably  required  of 
him.32  ^fr^^Afc^  '  *  7f*'7fd~ 

29.  Hot  Springs  L.  Co.  v.  Revercomb,  110  Va.  140,  65  S.  E.  557. 

30.  Acts  1912,  p.  533. 

31.  Witmore  v.  Karrick,  205  U.  S.   141. 

32.  3  Cyc.  44. 


§   291  EVIDENCE  OF  AUTHENTICATION  523 

The  bill  of  exception  to  the  judgment  of  the  court  overruling  a 
motion  for  a  iicw  trial,  on  the  ground  that  the  verdict  is  contrary 
to  the  evidence,  differs  in  one  respect  from  the  other  bills  taken 
in  the  case.  In  this  bill,  it  should  be  distinctly  and  plainly  cer- 
tified that  the  evidence  certified  in  the  bill  is  all  of  the  evidence 
that  was  introduced  on  the  trial.  The  form  of  this  bill  is  brief, 
and  is  substantially  as  follows : 

"Be  it  remembered  that  on  the  trial  of  this  case,  and  after  the 
jury  had  rendered  their  verdict  in  the  following  words  and  fig- 
ures to-wit:  (here  insert  the  verdict)  the  defendant  moved  the 
court  to  set  aside  the  said  verdict,  because  the  same  is  contrary 
to  the  evidence,  which  motion  the  court  overruled,  to  which  ac- 
tion of  the  court  in  overruling  said  motion  the  defendant  ex- 

cepts,  and  prays  that  this,  his  bill  of  exception  No , 

may  be  signed,  sealed  and  enrolled  as  a  part  of  the  record,  which 
is  done  accordingly.  And  in  order  to  save  to  the  defendant  the 
benefit  of  his  said  exception,  the  court  doth  certify  that  the  fol- 
lowing is  the  evidence,  and  all  of  the  evidence,  introduced  on  the 
trial  of  said  case.  (Here  insert  the  evidence  in  full.) 

" (Seal.)" 

It  has  been  held,  however,  that  it  is  sufficient  if  the  bill  certi~ 
fies  that  the  following  was  "the"  evidence,  etc. ;  that  "the"  in  that 
connection  means  all.33 

§    291.    Evidence  of  authentication. 

Unless  required  by  statute,  it  is  not  necessary  for  a  bill  of  ex- 
ception to  be  sealed.  The  present  statute  in  Virginia  declares 
that  when  signed  by  the  judge  it  "shall  be  a  part  of  the  record  of 
the  case."34  Formerly  it  was  required  by  statute  that  bills  of 
exception  in  criminal  cases  should  be  signed  and  sealed  by  the 
judge  and  entered  in  the  record  by  the  clerk.35  It  is  no  longer 
necessary  in  Virginia  that  the  bill  should  be  entered  on  the  rec- 
ord, but  it  is  necessary  that  the  bill  should  be  signed  by  the  judge. 
An  unsigned  bill  is  no  part  of  the  record.36  Furthermore,  there 

33.  Manchester  Loan  Ass'n  v.  Porter,  106  Va.  528,  56  S.  E.  337. 

34.  Code,  §  3385. 

85.  1   Rev.   Code    (1819),   chap.  133,   §  2,  p.  523. 
36.  Colby  v.  Reams,  109  Va.  308,  63  S.  E.  1009. 


524  BILLS  OF  EXCEPTION  §    291 

should  be  some  record  evidence  of  the  authentication  of  the  bills. 
The  record  must  in  some  way  show  that  the  bill  of  exception  was 
signed  by  the  judge,  and  that  it  was  signed  within  the  time  pre- 
scribed by  law.  These  facts  cannot  be  made  to  depend  upon 
parol  evidence.  The  appellate  court  will  take  judicial  notice  of 
the  signature  of  the  trial  judge,  but  in  order  that  the  bill  may  be 
a  part  of  the  record  it  must  be  signed  with  the  purpose  of  mak- 
ing it  such  and  within  the  time  prescribed  by  law.  The  clerk  has 
no  authority  to  make  a  bill  a  part  of  the  record,  nor  does  the 
mere  copying  by  him  of  unauthenticated  bills  into  the  record 
have  that  effect.  When  time  has  been  given  beyond  the  term 
for  filing  a.  bill  of  exception,  the  record  must  show  affirmatively 
that  it  was  filed  within  the  time  limited.  The  mere  signature  of 
the  judge  without  more  makes  the  bill  as  much  a  part  of  the  rec- 
ord as  if  it  were  copied  in  extenso  in  the  order  book  and  his  sig- 
nature affixed  thereto,  but  in  order  to  have  this  effect  it  must  in 
some  way  appear  that  this  official  act  was  done  within  the  time 
prescribed.36*  Just  how  this  shall  be  made  to  appear  from  the 
record  is  not  stated,  but  as  the  statute  declares  the  bill  to  be  a 
part  of  the  record,  if  the  bill  itself  is  dated,  the  date  will  be 
taken  at  least  as  prima  facie  correct,  if  not  conclusive,  and  would 
seem  to  answer  the  requirements  of  the  statute.  The  judge 
should  give  the  date  of  his  signature  and  the  clerk  should  note 
the  date  of  filing.  The  following  forms  would  seem  to  be  suf- 
ficient. 

At  the  foot  of  the  bill  let  the  judge  sign  and  address  the  bill,  as 
follows : 

(Signature)  John  Smith  (Seal.) 

Judge  Fifth  Judicial  Circuit. 
June  10,  1910. 

36a.  The  statement  of  the  text  that  the  record  must  show  that  the 
bill  was  signed  and  filed  within  the  time  prescribed  by  law,  is  believed 
to  be  subject  to  the  qualification  that  if  the  party  excepting  has  done 
all  that  was  required  of  him,  that  is  has  presented  a  proper  bill  in 
due  time  to  the  judge  for  his  signature  and  the  judge  has  failed  to 
sign  it  within  the  time  prescribed,  from  negligence  or  other  cause, 
the  exceptor  will  not  be  deprived  of  his  bill  of  exception.  But  see 
Anderson  v.  Comth,  105  Va.  533,  54  S.  E.  305. 


§  291  EVIDENCE  OE  AUTHENTICATION  525 

To  A.  B.,  Clerk,  Fifth  Judicial  Circuit  of  Virginia. 

You  will  note  the  filing  of  the  foregoing  bill  of  exception. 

John  Smith,  Judge. 
June  10,  1910. 
Filed  June  10,  1910. 
(Signed.)  A.  B.,  Clerk. 

This  mere  memorandum  by  the  clerk  would  seem  to  be  suf- 
ficient in  addition  to  the  signature  of  the  judge  giving  the  date  of 
the  bill.  There  ought  to  be  some  note  by  the  clerk  to  show 
when  the  bill  reached  him  officially.  It  would  be  better  practice 
for  the  clerk  to  note  on  his  order  book  a  memorandum  to  the  fol- 
lowing effect: 

In  the  vacation  of  the  Circuit  Court  of  X  county,  June  10, 
1910. 

Smith 
v.        Memo. 

Coke 

Bills  of  exception,  Nos.  1,  2,  3,  and  4,  taken  to  rulings  of  the 
court  during  the  trial  of  the  above  case,  duly  signed  and  sealed 
by  the  judge  of  this  court,  were  this  day  filed.37 

In  West  Virginia  it  has  been  held  that  the  mere  signing  of  a 
bill  of  exception  is  not  sufficient  but  that  there  must  be  some  or- 
der or  memorandum  on  the  order  book  showing  the  exception.38 

37.  Standard  Peanut  Co.  v.  Wilson,  110  Va.  650.  66  S.  E.  772;  Buena 
Vista  Co.  v.  Hickman,  108  Va.  665,  62  S.  E.  804. 

38.  Bank  r.  Showacre,  26  W.  Va.  48,  53;  Koontz  v.  Koontz,  47  W. 
Va.   31,   34   S.    E.   752.      See,   also,   Thornton   r.   Com.,    113   Va.   — ,   73 
S.  E.  481. 


CHAPTER  XXXVII. 
ARGUMENT  OF  COUNSEL. 

§  292.  Opening  and  conclusion. 

§  293.  Number    of    counsel. 

§  294.  Duration  of  argument. 

§  295.   Reading  law  books  to  the  jury. 

§  296.  Scope  of  argument. 

§    292.    Opening  and  conclusion. 

The  party  having  the  burden  of  proof  generally  has  the  right 
to  open  and  conclude,  and  if  the  plaintiff  has  the  burden  on  any 
issue,  even  the  establishment  of  damages,  or  as  to  any  defend- 
ant, he  has  the  right  to  open  and  conclude.  Whether  the  neces- 
sity for  proving  damages  only  on  the  part  of  the  plaintiff  is  such 
an  affirmative  as  entitles  him  to  open  and  conclude  is  said  not  to 
be  perfectly  clear,  but  that  where  such  evidence  forms  part  of 
the  proof  necessary  to  sustain  the  action,  as  in  an  action  of  slan- 
der for  words  actionable  only  in  respect  of  the  special  damage 
thereby  occasioned,  the  plaintiff  would  have  the  right  to  open 
and  conclude,  and,  by  the  weight  of  authority,  the  right  to  open 
and  conclude  is  given  to  the  plaintiff  whenever  the  damages  in 
dispute  are  unliquidated,  and  to  be  settled  by  a  jury  upon  such 
evidence  as  may  be  adduced,  and  not  by  a  mere  computation.1 
It  is  generally  conceded  everywhere  that  upon  an  application  to 
probate  a  will,  the  executor  has  the  burden  of  proof  and  is  en- 
titled to  open  and  conclude.  The  rule  in  Virginia  has  been 
stated  to  be  that  wherever  the  defendant  relies  upon  a  plea  which 
puts  in  issue  the  plaintiff's  demand  and  casts  upon  him  the  bur- 
den of  proof,  the  plaintiff  has  the  right  to  open  and  conclude  the 
argument ;  that  it  is  only  when  the  defendant  pleads  some  affirm- 
ative matter  alone,  the  proof  of  which  rests  upon  him,  that  he 
can  claim,  the  right  to  open  and  conclude  the  argument.2  If  a 
plaintiff  opens,  and  his  opponent  declines  to  reply,  then  the  argu- 

1.  1  Gr.  Ev.  (16  Ed.),  §§  75,  76. 

2.  Wright  v.  Collins,  111  Va.  806,  69  S.   E.  942. 


§§    293-294  DURATION    OF    ARGUMENT  527 

ment  is  concluded,  and  the  plaintiff  cannot  again  argue  by  way  of 
conclusion.3  Whether  the  refusal  of  the  right  to  open  and  con- 
clude is  of  itself  ground  for  reversal  is  a  subject  of  some  doubt. 
In  Virginia  it  is  held  that  if  the  right  to  open  and  conclude  be  de- 
nied to  a.  party  entitled  to  it,  the  appellate  court  will  reverse  if 
the  verdict  is  contrary  to  the  evidence,  or  injury  or  injustice  re- 
sults therefrom,  but  not  otherwise.4  In  West  Virginia  it  is  held 
that  where  a  party  entitled  to  open  and  conclude  the  argument  is 
denied  that  right,  the  presumption  is  that  he  is  prejudiced 
thereby,  and  the  judgment  will  be  reversed  unless  it  clearly  ap- 
pears that  he  could  not  have  been  prejudiced  thereby.5  The 
courts  elsewhere  are  divided  on  the  subject,  but  probably  a  ma- 
jority hold  that  the  mere  improper  denial  of  the  right,  is  ground 
for  reversal.6 

§    293.    Number  of  counsel. 

In  the  absence  of  statute,  the  number  of  counsel  who  may 
speak  rests  in  the  discretion  of  the  trial  court.  In  Virginia  and 
West  Virginia  not  more  than  two  can  speak  on  the  same  side 
unless  by  leave  of  the  court.7 

§    294.    Duration  of  argument. 

The  duration  of  the  argument  is  generally  determined  by  the 
sound  discretion  of  the  trial  court  under  all  the  circumstances 
of  the  particular  case,  subject  to  review  for  abuse.  In  the  ab- 
sence of  statute  there  is  no  fixed  rule  as  to  time.  In  a  case  of 
felony,  where  seventeen  witnesses  were  examined,  it  was  held 
that  a  limit  of  thirty  minutes  to  a  prisoner's  counsel  was  unrea- 
sonably short,8  but  in  other  cases  it  has  been  held  that  one  and 
a  half  and  two  hours,  respectively,  was  not  an  unreasonable 

3.  Abbott's  Civil  Trial  Brief,  Ch.  IV;  also,  p.  395. 

4.  Steptoe  v.  Harvey,  7  Leigh  501;  Valley  Mut.  Ins.  Co.  V.  Teewalt. 
T9  Va.  427. 

5.  Sammons  v.  Hawvers.  25  W.  Va.  678. 

6.  Abbott's   Civil   Trial    Brief,   105,   ff. 

7.  Code,   §  3386;   Code,  W.  Va.,  §  3980. 

8.  Jones'  Case.  87  Va.   63,   12   S.   E.  226. 


528  ARGUMENT    OF    COUNSEX  §    295 

limit.9  In  West  Virginia  the  argument  of  each  counsel  cannot 
exceed  two  hours  unless  by  leave,  and  it  is  further  provided  that 
the  court  may,  in  its  reasonable  discretion,  still  further  limit 
the  time  of  argument  on  each  side.10 

§    295.    Reading  law  books  to  the  jury. 

On  this  subject  the  cases  are  in  conflict.  It  was  once  held  in 
Virginia  that  it  was  an  unwarrantable  restriction  upon  the  legit- 
imate scope  of  argument,  if  not  a  flagrant  usurpation,  for  a  trial 
court  to  prohibit  counsel  from  referring  to  and  reading  from  rec- 
ognized authorities,  especially  the  decisions  of  the  Court  of  Ap- 
peals of  this  State,11'  but  this  decision  has  been  overruled,  the 
court  saying:  "It  being  the  settled  rule  in  Virginia  that  it  is  the 
duty  of  the  court  to  instruct  the  jury  as  to  the  law,  and  the  duty 
of  the  jury  to  follow  the  law  as  laid  down  by  the  court,  and 
it  being  further  the  prevailing  and  proper  practice,  for  the  cotirt 
to  give  its  instructions  in  writing,  in  advance  of  the  argument, 
it  would  seem  to  follow  as  a  necessary  consequence  that  counsel 
should  be  confined,  in  their  argument  from  legal  premises,  to  the 
propositions  of  law  embodied  in  the  court's  instructions.  To  al- 
low authorities  to  be  read  to  the  jury  from  the  books  would  be  cal- 
culated to  confuse  and  mislead  them,  and  cause  them  to  disre- 
gard the  court's  instructions,  and  deduce  from  the  books  their 
own  idea  of  the  law,  which  they  are  not  permitted  to  do.  It  is 
often  difficult  to  interpret  the  language  of  the  books,  and  a  mat- 
ter of  perplexity  and  doubt  to  apply  the  principles  involved,  or 
to  determine  whether  the  ruling  in  a  given  case  has  any  applica- 
tion to  the  case  under  trial.  These  doubts  and  difficulties  are 
supposed  to  have  been  solved  by  the  court,  and  the  law  appli- 
cable to  the  particular  case  deduced  from  the  books,  and  given 
to  the  jury  in  the  form  of  written  instructions.  Whatever  may 
be  avowed  by  counsel  for  the  purpose  for  which  authorities  are 
read,  that  does  not  obviate  the  evil  effect  that  would  almost  cer- 

9.  Cunningham's  Case,  88  Va.  37,  13  S.  E.  309;  Thompson's  Case, 
88  Va.  45,  13  S.  E.  304. 

10.  Code,  W.  Va.,  §  3980. 

11.  N,  &  W.  R.  Co.  v.  Harman,  83  Va.  553,  8  S.  E.  251. 


§   296  SCOPE  OF  ARGUMENT  529 

tainly  flow  from  permitting  them  to  be  read.  The  due  and 
speedy  administration  of  justice,  to  say  nothing  of  the  duty 
which  the  court  owes  to  its  own  self-respect,  demands  that  coun- 
sel should  be  confined  in  their  argument  before  a  jury,  from  le- 
gal premises,  to  the  propositions  of  law  embodied  in  the  court's 
instructions,  and  should  not  be  permitted  to  read  authorities  from 
the  books."12  The  rule  forbidding  law  books  to  be  read  to  the 
jury  is  held  in  Virginia,  Georgia,  California,  Michigan,  Indiana, 
and  probably  other  States.  In  West  Virginia,  Texas,  and  other 
States,  the  matter  rests  in  the  discretion  of  the  trial  court.  It 
is  said  in  a  West  Virginia  case,  that  if  the  law  read  be  good  law 
and  relevant  to  the  case,  it  is  clearly  not  ground  of  error;  if  it 
be  bad  law  or  irrelevant  to  the  case,  and  calculated  to  mislead 
the  jury,  yet  if  the  court  has  given  instructions  correctly  stat- 
ing the  law  on  the  subject,  it  is  not  reversible  error,  but  in  the 
absence  of  such  instructions  it  would  be.13  But  in  this  same 
jurisdiction  it  was  held  that,  on  the  trial  of  an  action  for  dam- 
ages, it  is  error  for  the  court  to  permit  counsel  for  the  plain- 
tiff, over  the  objection  of  the  defendant,  to  read  to  the  jury  on 
the  question  of  the  measure  of  damages  extracts  from  reported 
cases  showing  large  damages  held  not  excessive.14  If  instruc- 
tions have  been  given,  certainly  it  would  seem  that  the  counsel 
should  not  be  permitted  to  read  authorities  to  the  contrary. 

§    296.    Scope  of  argument. 

Counsel  may,  of  course,  comment  on  the  evidence,  the  de- 
meanor of  witnesses,  their  bias,  prejudice,  relationship,  manner 
of  testifying,  and  the  like,  and  on  the  failure  to  put  available  wit- 
nesses of  importance  on  the  stand,  or  to  produce  available  doc- 
umentary evidence  important  to  a  party's  case,  but  they  have  no 
right  to  cast  aspersions  on  a  witness  not  warranted  by  what  has 
transpired  in  the  case,  nor  refer  to  matters  not  given  in  evidence, 
and  may,  at  any  time  while  transgressing,  be  stopped  by  oppos- 

12.  Newport  News  v.  Bradford,  100  Va.  231,  240,  40  S.  E.  900.     See, 
also,  Alleghany  Iron  Co.  v.  Teaford,  96  Va.  372,  31  S.  E.  525;  Ches.  & 
O.  R.  Co.  v.  Rowsey,  108  Va.  632,  640,  62  S.   E.  363. 

13.  Gregory  v.  Ohio  R.  Co.,  37  W.  Va.  606,  16  S.   E.  819. 

14.  Ricketts  r.  C.  &  O.  R.  Co.,  33  W.  Va.  433.  10  S.  E.  801. 
—34 


530  ARGUMENT    OF    COUNSEL  §    296 

ing  counsel  or  the  court.  While  much  latitude  is  allowed  in  ar- 
gument, appeals  to  the  sympathy  or  prejudice  of  a  jury  are,  as  a 
rule,  improper.15  If  improper  remarks  are  made  by  counsel  in 
his  address  to  the  jury,  and  the  opposing  party  wishes  to  object 
to  them,  the  objection  should  be  made  at  the  time,  and  the  court 
requested  to  instruct  the  jury  to  disregard  them,  and,  unless 
made  at  the  time,  the  objection  will  be  deemed  to  have  been 
waived.  Such  objections  come  too  late  after  verdict.16  Argu- 
ments should  be  concise  and  to  the  point.  Counsel  should  con- 
fine themselves  to  the  issues  made  by  the  pleadings.17  Generally 
it  is  not  permissible  to  read  from  medical  books  not  given  in  evi- 
dence, or  to  use  maps  or  diagrams  not  put  in  evidence.18 

If  the  case  be  heard  on  a  demurrer  to  the  evidence,  the  argu- 
mertt  of  counsel  before  the  jury  must  be  confined  to  the  quan- 
tum of  damages.  Counsel  for  the  demurrant  may  argue  in  dim- 
inution of  damages,  but  not  in  bar  of  the  right  of  recovery.19 
The  argument  before  the  court  on  the  hearing  of  the  demurrer, 
of  course,  may  be  in  bar  of  any  right  of  recovery  whatever. 

15.  So.   Ry.  Co.  v.  Simmons,  105  Va.  651,  55   S.   E.  459. 

16.  Wickham  v.  Turpin,  112  Va.  236,  70  S.  E.  514. 

17.  On  the  gefferal  subject  of  misconduct  of  counsel  in  argument, 
and  the  duration  of  argument,  respectively,  see  notes  9  Am.  St.  Rep. 
559-570;  46  Am.  St.   Rep.  23-28. 

18.  2   Encl.   PI.   &   Pr.   739,   741. 

19.  N.  &  W.  R.  Co.  v.  Harman,  83  Va.  553,  8  S.  E.  251. 


CHAPTER  XXXVIII. 
VERDICTS. 

§  297.  Different  kinds  of  verdicts. 

§  298.  Special  verdicts   and   case   agreed. 

Case  agreed. 

§  299.  Definition  and  rendition  of  general  verdict. 
§  300.  Essentials  of  a  general  verdict. 

1.  The  verdict  must  respond  to  all  the  issues. 

2.  The  verdict  must  respond  to  the  whole  of  each  issue. 

3.  The  verdict  should    not    find     matters     outside     of     the 

issues. 

4.  The  verdict  must  be  certain. 

5.  The  verdict  must  be  unanimous. 

6.  The  verdict  should  be   delivered  in  open   court. 

Sealed  verdicts. 
Chance   verdicts. 

7.  The  verdict  should  be  received  and  recorded. 

8.  Verdict  should  accord  with   instructions   of  the   court. 

9.  Verdict   should  not  be   excessive. 
10.  Verdict  should  not  be  too  small. 

Interest. 

§  301.  Entire  damages   on   defective  counts. 
§  302.  Objections  to  verdicts. 

§    297.    Different  kinds  of  verdicts. 

Verdicts  may  be  general  or  special,  but,  in  the  absence  of  stat- 
ute, the  jury  may  find  either  at  its  election.  It  is  not  compellable 
to  find  a  special  verdict.  A  general  verdict  is  a  finding  for  either 
the  plaintiff  or  the  defendant  on  all  the  material  issues  of  the 
case.  A  special  verdict  is  a  finding  of  all  the  facts  necessary  to 
enable  the  court  to  determine  the  cause.  No  facts  can  be  in- 
ferred by  the  court  from  those  found.1 

§    298.    Special  verdicts  and  case  agreed. 

A  special  verdict,  as  just  pointed  out,  is  a  finding  of  all  the 

1.  22  End.  PI.  &  Pr.  1013,  839,  891;  Hall  v.  Ratliffe,  93  Va.  327, 
24  S.  E.  1011;  Monticello  Bank  v.  Bostwick,  77  Fed.  123;  Hodges 
v.  Eastern,  106  U.  S.  408. 


532  VERDICTS  §  298 

facts  established  by  the  evidence  before  the  jury.  No  facts  can 
be  inferred  by  the  court  from  those  found.  Hence  it  is  not  suf- 
ficient to  find  the  evidence  from  which  the  jury  might  have  in- 
ferred facts.2  The  facts  being  found,  however,  the  court  may 
draw  inferences  of  law  from  them.  If  a  special  verdict  fails  to 
find  the  facts  established  by  the  evidence,  the  proper  remedy  is 
for  a  venire  facias  de  novo  and  not  to  coerce  the  jury  to  find 
the  facts.3  So,  likewise,  if  a  special  verdict  is  so  vague  and  un- 
certain as  not  to  disclose  the  merits  of  the  case,  a  venire  de 
novo  should  be  ordered;  but  where  the  verdict  is  certain  and 
unambiguous,  and  the  plaintiff's  case  appears  from  it  to  be 
defective,  judgment  must  be  given  for  the  defendant.4  In 
finding  a  special  verdict,  the  jury  in  their  verdict  say :  "We 
the  jury  find  such  and  such  facts,"  stating  them,  and  then 
concludes  to  the  following  effect,  "that  they  are  ignorant 
in  point  of  law  on  which  side  they  ought,  upon  these  facts, 
to  find  the  issue,  and  that  if,  upon  the  whole  record,  the 
court  should  be  of  opinion  that  the  issue  is  proved  for  the 
plaintiff,  they  find  for  the  plaintiff  accordingly,  and  assess  his 
damages  at  such  a  sum,  but  if  the  court  be  of  an  opposite 
opinion,  then  they  find  for  the  defendant"  This  form  of 
finding  is  called  a  special  verdict.  The  jury,  however,  really 
have  very  little  to  do  with  the  preparation  of  the  special  verdict. 
When  it  is  agreed  between  counsel  that  a  special  verdict  is  to 
be  given,  the  jury  merely  declare  their  opinion  as  to  any  fact 
remaining  in  doubt,  and  then  the  verdict  is  drawn  up  by  counsel 
without  further  interference  from  the  jury.  "It  is  settled,  under 
the  correction  of  the  judge,  .by  the  counsel  and  attorneys  on 
either  side,  according  to  the  state  of  facts  as  found  by  the  jury, 
with  respect  to  all  particulars  on  which  they  have  delivered  an 
opinion,  and  with  respect  to  other  particulars  according  to  the 
state  of  facts  which  it  is  agreed  that  they  ought  to  find  upon  the 
evidence  before  them.  The  special  verdict,  when  its  form  is 
thus  settled,  is,  together  with  the  whole  proceedings  on  the  trial, 

2.  Brown  v.   Ralston,  4   Rand.   504. 

3.  Pittsburg   R.   Co.   v.   Montgomery,   152   Ind.   1,   49    N.    E.   582,   71 
Am.  St.  Rep.  301. 

4.  Min.   Inst.   925;    Brown  v.    Ferguson,   4   Leigh  37. 


§    298  SPECIAL  VERDICTS   AND   CASE  AGREED  533 

then  entered  on  record;  and  the  question  of  law  arising  on  the 
facts  found  is  argued  before  the  court  in  bank,  and  decided  by 
that  court,  as  in  case  of  demurrer.  If  the  party  be  dissatisfied 
with  their  decision,  he  may  afterwards  resort  to  a  court  of  er- 
ror."5 As  already  stated,  the  jury  are  not  bound  to  find  a  spe- 
cial verdict,  hence  the  parties  cannot  insist  upon  it,  and,  if  they 
are  unwilling  to  find  a  special  verdict,  the  party  objecting  is 
forced  either  to  demur  to  .the  evidence,  or  to  ask  a  hypothetical 
instruction  covering  the  case,  or  else,  if  the  counsel  can  agree 
upon  it,  to  state  a  case  agreed.  Sometimes  a  party  is  unwilling 
to  risk  a  demurrer  to  evidence,  and  resorts  to  a  special  verdict 
to  refer  a  legal  question  to  the  court  in  much  the  same  way  that 
it  would  be  referred  on.  a  demurrer  to  evidence.  It  will  be  ob- 
served that  the  special  verdict  is  made  a  part  of  the  record  just 
as  a  general  verdict  is. 

Case  Agreed.  A  case  agreed  is  also  called  a  special  case, 
or  a  general  verdict  subject  to  a  special  case.  All  three  terms 
are  used  to  designate  the  same  thing.  A  special  case  is 
a  \\ritten  statement  of  all  the  facts  in  the  case  drawn  up  for 
the  opinion  of  the  court  by  counsel  on  both  sides  under  the 
supervision  of  the  trial  judge,  and  is  very  similar  to  a  special  ver- 
dict. It  is,  as  stated,  the  agreement  of  counsel  on  both  sides  as 
to  what  the  facts  of  the  case  are,  signed  by  counsel,  and  referring 
to  the  court  the  question  of  law  arising  thereon.  Like  a  special 
verdict,  no  facts  are  considered  except  those  that  are  agreed. 
No  inferences  of  fact  from  the  facts  agreed  are  permissible.* 
Of  course  there  can  be  no  such  thing  as  a  case  agreed  except  in 
a  pending  action,  as  parties  cannot  agree  upon  a  state  of  facts 
out  of  court  and  bring  them  into  the  court  for  decision,  except 
in  some  pending  action.  A  special  case,  however,  may  be  agreed 
at  any  time  before  or  after  the  issues  have  been  made  up.  If  the 
case  is  agreed  before  the  defendant  pleads,  the  agreement  cures 
the  want  of  a  plea,  and  the  cause  is  submitted  to  the  court  upon 
the  agreed  facts  without  reference  to  any  particular  issue,  and 
the  court  decides  upon  the  whole  case  as  submitted  as  to  what 

5.  Stephen's  Pleading.  §  125. 

6.  Sawyer  r.  Corse,  17  Gratt.  230. 


534  VERDICTS  §  299 

the  judgment  should  be,  but  if  the  agreement  is  made  after  is- 
sue joined  the  decision  is  restricted  to  the  issue.7  It  is  said  that 
a  special  case  is  not  (like  a  special  verdict)  entered  on  record, 
and  consequently  a  writ  of  error  does  not  lie  to  the  decision,8  but 
no  such  distinction  is  made  in  Virginia.  A  case  agreed  is  en- 
tered of  record  just  as  a  special  verdict  is,  and  a  writ  of  error 
lies  to  the  decision  in  the  same  manner.  In  Virginia  a  case 
agreed  is  a  substitute  for  a  special  verdict,  and  subject  to  like 
rules.0  In  a  case  agreed,  counsel,  as  stated,  agree  upon  the  facts 
and  write  out  and  sign  a  statement  containing  the  facts,  substan- 
tially as  follows:  "We  agree  that  (here  set  out  the  facts).  We 
further  agree  that  if,  upon  the  foregoing  statement  of  facts  the 
plaintiff  is  entitled  to  recover,  then  the  judgment  shall  be  en- 
tered for  him  for  (here  insert  the  judgment.  If  for  money,  state 
the  amount.)  But  if  the  law  upon  the  whole  matter  be  for  the 
defendant,  then  judgment  shall  be  rendered  for  the  defendant."10 
Sometimes  the  parties  differ  as  to  what  fact  or  facts  are  estab- 
lished by  the  evidence.  They  probably  agree  upon  most  of  the 
facts,  but  there  are  one  or  more  points  or  facts,  upon  which  they 
disagree.  These  have  to  be  submitted  to  the  jury  for  their 
determination  and  settlement.  The  jury  (after  hearing  argu- 
ment, if  desired)  retire  and  consider  these  points,  and  when  they 
have  agreed,  they  report  their  determination  in  open  court,  and 
the  counsel  then  write  out  the  special  verdict  containing  all  the 
facts 'found,  and  one  of  the  jury  signs  it  as  the  verdict  of  the  jury 
and  it  is  so  recorded.  It  is  only  when  the  parties  cannot  agree 
upon  the  facts  that  a  special  verdict  is  necessary.  If  they  could 
agree  the  facts,  they  would  simply  write  out  "a  case  agreed," 
and  thus  save  the  delay  and  expense  of  a  special  verdict. 

§    299.    Definition  and  rendition  of  general  verdict. 

In  the  chapter  on  Juries,  the  oath  of  a  juror  in  a  civil  case  is 
given.     This  defines  fairly  well  the  duty  of  the  jury,  but,  as  here- 

7.  Sawyer  v.  Corse,  supra. 

8.  Stephen's  PL,  §  125. 

9.  Sawyer  v.  Corse,  17  Gratt.  230. 

10.  Slaughter  v.   Greene,   1   Rand.  3. 


§    300  ESSENTIALS    OF    A    GENERAL    VERDICT  535 

inbefore  pointed  out,11  where  issues  are  joined,  the  jury  which 
tries  the  issues  also  assesses  such  damages  as  are  to  be  assessed 
in  the  case.  In  civil  cases  they  decide  according  to  the  prepon- 
derance of  the  evidence,  and,  in  the  absence  of  all  evidence,  or 
in  a  case  so  doubtful  that  they  cannot  determine  for  whom  to  find, 
the  verdict  should  be  against  the  party  having  the  burden  of 
proof.  Unless  otherwise  provided  by  statute,  the  verdict  must 
be  unanimous.  A  verdict  is  the  finding  of  a  jury  on  one  or 
more  questions  of  fact  submitted  to  its  determination.  It  is 
generally  in  writing,  and  properly  should  be  so,  but  in  the  ab- 
sence of  statute  need  not  be.  A  verdict  is  what  is  entered  of 
record  as  a  verdict,  and  not  merely  what  the  jury  says  it  is.  In 
case  of  a  variance  between  the  verdict  as  written  out  and  the 
verdict  entered  of  record,  the  record,  if  incorrect,  could  probably 
be  corrected  by  reference  to  the  written  verdict  under  provi- 
sions of  statute.12  But  until  corrected,  the  verdict  as  recorded  is 
the  verdict  of  the  jury.  If  the  record  shows  a  verdict  rendered 
in  open  court,  it  is  immaterial,  even  in  a  criminal  case,  that  the 
verdict  is  not  signed.13 

§    300.    Essentials  of  a  general  verdict. 

I.  The  J'crdict  Must  Respond  to  All  the  Issues. — A  general 
finding  for  the  defendant  is  sufficient,  and  if  the  defendant  suc- 
ceeds on  any  issue  it  is  usual  to  find  for  him  generally.     Where, 
in  an  action  of  assumpsit  on  an  open  account,  the  pleas  were  non 
assuiiipsit  and  the  statute  of  limitations,  a  general  verdict  for  the 
plaintiff  assessing  his  damages  was  held  to  be  responsive  to  all 
the  issues.14     In  an  action  of  tort  against  several  defendants  for 
an  alleged  joint  trespass,  although  they  severally  plead  not  guilty, 
there  is  but  one  issue  submitted  to  the  jury,  and  a  general  find- 
ing in  favor  of  the  plaintiff,  without  naming  the  defendants,  is 
a  finding  against  all  of  the  defendants.15 

II.  Ante,   §   181.   note   14. 

12.  Code,  §  3451. 

13.  Wood  v.  Com.,  86  Va.  933,  11  S.  E.  799;   Hall  r.  Com.,  89  Va. 
171,  15  S.  E.  517. 

14.  Hansbrough  v.  Xeal.  94  Va.  722.  27  S.  E.  593.     See.  also,  Black 
v.  Thomas,  21  W.  Va.  709. 

15.  Fishburne  v.  Engledove,  91  Va.  548,  22  S.  E.  354. 


536  VERDICTS  §  300 

In  an  action  against  several  for  a  single  wrong  where  there  is 
no  personal  defence  set  up  by  any  one,  but  all  unite  in  one  plea 
of  not  guilty,  the  verdict  should  be  for  the  amount  clue  by  the 
most  culpable  and  for  a  single  amount.  If  the  jury  severs  in 
its  verdict, -no  judgment  can  be  properly  entered  thereon,  and 
a  venire  de  novo  is  necessary,  but  the  plaintiff  may  elect  to  take 
judgment  as  to  one  and  dismiss  as  to  the  others,  in  which  event 
no  venire  de  novo  need  be  awarded.  The  jury  should  make  a 
single  assessment  of  damages  against  all  liable.16 

2.  The  Verdict  Must  Respond  to  the  Whole  of  Each  Issue. 
If,  in  an  action  against  two  obligors,  one  dies,  and  the  action 
abates  as  to  him  and  the  other  pleads  payment,  and  there  is  a  ver- 
dict that  the  surviving  defendant  has  not  paid  the  debt  in  the 
declaration  mentioned,  this  is  not  responsive  to  the  whole  issue.17 
So  in  detinue,  if  the  verdict  is  silent  as  to  some  of  the  goods 
claimed,  or  fails  to  fix  values  to  others,  the  verdict  would  be  bad 
at  common  law,  and  a  venire  de  novo  would  be  necessary,  but 
in  Virginia  it  is  provided  that  if  no  verdict  be  found  for  part  of 
the  goods,  the  plaintiff  shall  be  barred  of  his  title  to  the  things 
omitted,  and  if  the  verdict  omit  the  price  or  value,  the  court  may 
at  any  time  have  a  jury  impanelled  to  ascertain  the  same.13     So 
also  in  a  joint  action  against  two  tort  feasors,  where  there  is  a 
joint  plea  of  not  guilty,  a  verdict  against  one,  making  no  men- 
tion of  the  other,  is  equivalent  to  a  verdict  in  favor  of  the  other. 
The  verdict  in  such  case  does  respond  to  the  whole  of  the  i'S- 
sue.19 

3.  The  Verdict  Should  Not  Find  Matters  Outside  of  the  Is- 
sues.— It  is  not  within  the  commission  of  the  jury  as  prescribed 
by  their  oaths  to  find  matters  outside  of  the  issues.     The  parties 
have  not  come  prepared  to  meet  such  matters,  and  the  excess  be- 
yond the  issues  will  be  treated  as  surplusage.     Where,  in  an  ac- 
tion of  detinue  for  three  slaves,  the  verdict  found  for  the  plain- 
tiff but  further  found  that  one  of  the  slaves  had  died  since  the 

16.  Crawford  ?'.   Morris,  5   Gratt.   90. 

17.  Triplett  v.  Micou,  1  Rand.  269. 

18.  Code,  §  2912. 

19.  Ivanhoe  Furnace  Corp.  v.  Crowder,  110  Va.  387,  66  S.  E.  63. 


§   300  ESSENTIALS   OF    A   GENERAL  VERDICT  537 

action  was  brought,  the  court  held  the  latter  finding  outside  of 
the  issue,  and,  treating  it  as  surplusage,  directed  judgment  to  be 
entered  for  all  the  slaves,  or  their  alternate  value.20 

4.  The  Verdict  Must  Be  Certain. — It  should  be  certain  as  to 
(1)  parties,  (2)  specific  property,  (3)  estate  in  the  property, 
(4)  the  amount  of  recovery,  etc.  Where  there  are  two  defend- 
ants in  an  action  of  tort,  but  the  record  fails  to  disclose  any  con- 
nection whatever  of  one  of  the  defendants  with  the  wrong  com- 
plained of,  and  the  whole  inquiry  at  the  trial  was  directed  to  the 
liability  of  the  other  defendant,  a  verdict  simply  finding  "for  the 
defendant"  is  decisive  of  the  case.  The  reasonable  intendment 
is  that  "defendant"  was  unintentionally  used  for  "defendants" 
and  a  venire  de  novo  should  not  be  awarded  on  account  of  the 
uncertainty  of  the  verdict.  A  verdict  should  not  be  set  aside  for 
the  mere  want  of  form  in  its  wording  when  the  meaning  of  the 
jury  can  be  satisfactorily  gathered  from  the  verdict.21  As  to 
the  certainty  of  description  of  property  and  estate,  this  is  gen- 
erally regulated  by  statute,  as  is  hereinbefore  pointed  out," 
with  reference  to  verdicts  in  ejectment  and  detinue.  In  connec- 
tion with  verdicts  in  ejectment,  it  should  have  been  stated  that 
it  has  been  held  in  Virginia  that  "where  the  declaration  charges 
that  the  plaintiff  owned  a  fee  simple  title  to  the  land,  a  verdict 
finding  the  defendant  'guilty  in  manner  and  form  as  the  plain- 
tiff in  his  declaration  hath  complained,'  is  a  sufficient  finding  of  a 
fee  simple  title  in  the  plaintiff,  though  informal.23  A  similar  ver- 
dict in  West  Virginia,  under  these  circumstances  is  held  not  to 
be  good,  though  the  statute  is  substantially  the  same  as  the  Vir- 
ginia statute.24 

Amount. — A  finding  for  the  plaintiff  "nominal  damages,"  with- 
out stating  the  amount,  is  bad  for  uncertainty,25  and  so  is  a  gen- 

20.  Austin  v.  Jones,   Gilmer  341.     See,  also,   Martin  v.   Ohio   Rirer 
Co.,   37   W.   Va.   349,    16   S.    E.   589. 

21.  Adamson  r.  Norfolk  Co.,  Ill  Va.  556,  69  S.  E.  1055. 

22.  Ante,  §§   125,  133. 

23.  Hawley  v.  Ferguson,  24  Gratt.  516. 

24.  Low    v.    Settle,    22    W.    Va.    389;    Oney   v.    Clendennin,    28    W. 
Va.  34;  overruling  Elliott  v.   Sutor,  3  W.  Va.  37. 

25.  Sellers  v.  Mann,  113  Ga.  643,  39  S.  E.  11. 


538  VERDICTS  §  300 

eral  finding  for  the  plaintiff  in  an  action  for  unliquidated  dam- 
ages, which  specifies  no  amount  ;26  and  so  of  a  finding  in  favor 
of  a  plaintiff  for  "fifty  acres  of  land  where  the  dwelling  house 
now  stands."27  But  where  the  defence  was  offsets,  a  verdict, 
"We  the  jury  find  for  the  plaintiff  and  assess  his  damage  at 
$805.55,  with  interest  from  August  5,  1893,  and  on  the  offsets 
claimed  by  the  defendant  we  find  for  the  defendant  and  assess 
his  damages  at  $204.66  with  interest  from  Aug.  5,  1893,"  was 
held  sufficiently  certain  and  upheld.28  The  verdict  of  a  jury, 
however,  which  necessarily  disposes  of  all  the  issues  in  the  case 
is  sufficient,  although  it  may  not  respond  specifically  to  each  sev- 
eral issue  or  fact  presented  by  the  pleadings.  For  instance, 
where  the  defendant  in  assumpsit  pleads  payment  and  files  a  list 
of  set  offs  exceeding  in  amount  the  plaintiff's  demand,  and  the 
verdict  finds  for  the  defendant  simply  a  gross  sum,  such  verdict 
must  be  interpreted  as  finding  that  the  set  off  of  the  defendant 
exceeded  the  amount  to  which  the  plaintiff  was  entitled  by  the 
sum  so  found,  and  the  verdict  is  therefore  not  ambiguous  or  un- 
certain.29 

5.  The    Verdict    Must    Be     Unanimous. — Although     unani- 
mous in  the  jury  room,  any  juror  may  withdraw  his  assent  at  any 
time  before  his  verdict  is  delivered  in  open  court  and  the  jury 
discharged.30     In  some  jurisdictions,  a  verdict  may  be  rendered 
by  less  than  all  of  the  jury. 

6.  The    Verdict   Should  Be  Delivered  in  Open  Court. — Ver- 
dicts delivered  to  the  judge  during  recess,  by  consent,  are  called 
privy  verdicts,  and  require  subsequent  ratification  in  open  court. 
They  have  not  been  generally  adopted  in  this  country,  and  are 
not  allowed  in  Vlirginia.31 

26.  City  of  Washington  v.  Calhoun,  103  Ga.  675,  30  S.  E.  434. 

27.  Lee  v.  English,  107  Ga.   152,  33   S.   E.  39. 

28.  Smith  v.  Packard,  94  Va.  730,  27   S.   E.   586.     See,  also,   Messick 
v.   Thomas,    84   Va.    891,    6    S.    E.    482;    Benn    r.    Hatcher,    81    Va.    25; 
Slocum  v.   Compton,   93   Va.   374,   25   S.   E.   3. 

29.  Black   v.    Thomas,    21    W.    Va.    709. 

30.  43  L.   R.  A.  33. 

31.  22   Encl.    PI.   &   Pr.    1003;    B.    &   O.   v.   Polly,   Woods    &   Co.,   14 
Gratt.  447. 


§  300  ESSENTIALS  OF  A  GENERAL  VERDICT  539 

Sealed  Verdicts  are  allowed  in  many  jurisdictions  when  the 
jurors  agree  during  an  adjournment  or  recess  of  the  court. 
They  write  out  their  verdict,  seal  it  and  deliver  it  to  the  clerk, 
and  then  disperse  to  reassemble  at  a  later  time  and  confirm  it. 
Upon  reassembling,  one  or  more  of  the  jurors  may  dissent.  If 
they  do,  the  courts  are  divided  as  to  whether  a  new  trial  should 
be  granted,  or  the  jury  be  sent  back  to  their  rooms  to  consider 
further  of  their  verdict.32  Upon  a  sealed  verdict,  where  one  of 
the  jurors  is  unable  to  attend  the  opening  of  the  verdict  by  rea- 
son of  sickness,  a  judgment  entered  on  such  a  verdict  is  not  a 
nullity,  but  only  an  irregularity  to  be  corrected  by  a  direct  pro- 
ceeding for  that  purpose.33 

If  upon  opening  a  sealed  verdict  one  juror  dissents  (although 
he  had  previously  assented),  but  the  verdict  is  such  as  the  court 
might  ivith  propriety  have  directed  in  the  first  instance,  it  is  not 
error  to  refuse  to  send  the  jury  to  their  rooms  and  to  enter  a 
judgment  on  the  verdict.34  In  those  jurisdictions  where  sealed 
verdicts  are  allowed  it  generally  rests  in  the  discretion  of  the  trial 
court  to  say  whether  it  will  be  allowed  in  that  particular  case  or 
not. 

In  U.  S.  v.  Ball,  163  U.  S.  662,  670-1,  it  is  said  that  the  recep- 
tion of  a  verdict  and  discharge  of  the  jury  is  but  a  ministerial 
act,  involving  no  judicial  discretion,  or  that  it  is  an  act  of  neces- 
sity, and  hence  may  be  done  on  Synday,  but  that  no  judgment 
thereon  can  be  rendered  on  that  day. 

In  Virginia  it  is  held  that  "parties  cannot  by  consent  author- 
ize a  jury  to  render  their  verdict  to  the  clerk  in  the  absence  of 
the  judge,  and  be  discharged.  And  if  a  verdict  is  thus  rendered 
and  the  jury  discharged,  it  is  no  verdict."35  In  Virginia  ver- 
dicts can  only  be  rendered  in  open  court,  and  as  the  court  can- 
not sit  on  Sunday,  no  verdict  can  be  rendered  on  that  day.36  In 
a  large  number  of  the  states,  including  Alabama,  Florida,37  Geor- 

32.  22   Encl.   PI.  &  Pr.   1009.  1010. 

33.  Humphries  r.  District  of  Columbia.  174  U.  S.  190. 

34.  Grimes  Dry  Goods  Co.  r.  Malcolm.  164  U.  S.  483. 

35.  B.  &  O.  r.  Polly,  Woods  &  Co.,  14  Gratt.  447. 

36.  See.  Lee  v.  Willis.  99  Va.  16,  37  S.  E.  826. 
•37.  Hodge  r.   State,  29   Fla.   500. 


540  VERDICTS  §  300 

gia,  Illinois,  Indiana,  Kentucky,  New  York,  New  Jersey,  North 
Carolina,  Pennsylvania,  and  Texas,  sealed  verdicts  are  allowed 
to  be  rendered  on  Sunday.38 

A  court  has  no  right  to  coerce  a  verdict,  but  the  jury  should  be 
left  free  and  untrammeled  in  all  respects  by  the  court.  Threats 
of  keeping  them  together  until  they  agree  are  not  to  be  made, 
and,  if  persisted  in,  will  avoid  the  verdict.39 

Chance  Verdicts. — Verdicts  should  be  the  deliberate  findings 
of  juries.  If  the  jury  casts  lots  for  the  verdict  it  is  no  verdict, 
but  what  is  called  a  chance  verdict.  So,  if  they  are  unable  to 
agree  upon  amounts,  and  agree  in  advance  that  each  juror  shall 
put  down  his  figures  and  that  the  aggregate,  divided  by  the  whole 
number  of  the  jury,  shall  be  the  verdict,  the  verdict  is  bad.  But 
if  the  process  be  purely  tentative,  and  after  the  result  is  ascer- 
tained they  agree  on  that  sum  for  a  verdict,  it  is  good.  The 
latter  is  called  a  quotient  verdict.40 

7.  The  Verdict  Should  Be  Received  and  Recorded  — '"'A  ver- 
dict is  not  complete  and  valid  until  it  is  rendered  in  open  court 
by  the  jury,  and  received  and  recorded  by  the  clerk."41    The  ver- 
dict as  recorded  is,  as  a  rule,  the  verdict.     If  there  is  a  variance 
the  recorded  verdict  will,  as  a  rule,  prevail.42     The  court  may 
direct  amendments  of  mere  form,  but  not  of  substance,  and  when 
amended  it  should  be  read  to  the  jury,  and  their  assent  be  ob- 
tained.43 

8.  Verdict  Should  Accord  with  the  Instructions  of  the  Court. 
A  large  number  of  the  states,  probably  the  majority,  hold  that 
although  an  instruction  be  wrong,  a  verdict  which  is  contrary  to 
the  instruction  should  be  set  aside.     In  other  words,  although 
the  verdict  be  right,  if  in  conflict  with  an  erroneous  instruction, 

38.  20  Encl.  PI.  &  Pr.  1194. 

39.  Buntin    v.    Danville,    93    Va.    200,    24    S.    E.    830. 

40.  Watson  v.  Reed,  15  Wash.  440,  55  Am.  St.   Rep.  899;  Abbott's 
Civil  Trial  Brief,  525;   Hank  v.  Allen    (Ind.),  11  L.   R.  A.  706;   Con- 
solidated Ice  Mach.  Co.  v.  Trenton  Ice  Co.,  57  Fed.  Rep.  898;  Wash. 
Luna  Park  Co.  v.  Goodrich,  110  Va.  692,  66  S.  E.  977,  and  cases  cited. 

41.  B.  &  O.  v.  Polly,  Woods  &  Co.,  supra. 

42.  22   Encl.   PI.    &   Pr.   938-9. 

43.  Porterfield  v.  Com.,  91  Va.  801,  22  S.  E.  352. 


§  300  ESSENTIALS  OF  A  GENERAL  VERDICT  541 

it  should  be  set  aside,  as  it  would  tend  to  degrade  the  judiciary 
and  unhinge  the  whole  system  of  the  administration  of  justice 
to  allow  juries  to  overrule  the  trial  court  on  the  legal  question 
involved.  It  is  said  that,  so  far  as  the  jury  are  concerned,  there 
is  no  such  thing  as  the  charge  of  the  judge  being  contrary  to 
law,  because  whatever  may  be  his  charge  is  law  to  them,  that  the 
instruction  is  binding  on  the  jury,  and  they  can  no  more  be  per- 
mitted to  look  beyond  the  instructions  to  ascertain  the  law  than 
they  would  be  allowed  to  go  outside  of  the  evidence  to  find  the 
facts  of  the  case.  To  allow  the  jury  to  find  a  verdict  in  conflict 
with  the  instructions  of  the  court  would  make  them,  and  not  the 
court,  the  judges  of  the  law  of  the  case.44  In  Virginia,  West 
Virginia,  Illinois,  and  other  States,  a  different  doctrine  is  held, 
and  a  verdict  which  is  correct  will  not  be  set  aside  simply  be- 
cause in  conflict  with  an  instruction  which  is  erroneous.45 

9.  Verdict  Should  Not  Be  Excessive. — If  the  verdict  is  excess- 
ive (i.  e.,  in  excess  of  what  the  party  is  entitled  to,  though  not 
in  excess  of  what  he  claims)  the  excess  may  be  voluntarily  re- 
leased or  the  court  may  put  the  successful  party  on  terms  to  re- 
lease a  part  or  else  submit  to  a  new  trial,  or  it  may  be  released 
by  the  trial  court  within  three  years  on  motion  after  reasonable 
notice  in  writing;  or,  if  there  is  no  other  objection  to  the  verdict 
except  that  it  is  too  large,  and  the  record  clearly  points  out  what 
the  excess  is  so  that  judgment  may  be  safely  entered  for  the  cor- 
rect amount,  the  trial  court,  it  would  seem,  may  enter  up  judg- 
ment for  the  correct  amount,  and  if  it  fails  to  do  so,  the  appel- 
late court  may  correct  the  error  and  enter  up  final  judgment  for 
the  correct  amount.46  Where  a  verdict  is  excessive  and  a  mo- 

44.  Dent  r.  Bryce,  16  S.  C.  1;  Fla.  R.  Co.  v.  Rhodes,  25  Fla.  40,  5 
South.   633;    Emerson   r.    Santa   Clara   County,   40   Cal.   543;   Abbott's 
Civil  Trial  Brief,  p.  506. 

45.  Richmond  &  D.  R.  Co.  r.   Medley,  75  Va.  lat  p.  503;  Collins  v. 
George,    102    Va.    509,    46    S.    E.    684;    Watts   v.    N.    &   W.    R.    Co.,    39 
W.  Va.  196,  19  S.  E.  521;  West  Chicago  R.  Co.  v.  Manning,  170  111. 
417.   48   N.    E.   958. 

46.  Buena  Vista  Co.  v.  McCandlish,  etc.,  92  Va.  297,  23  S.  E.  781; 
Fry  f.  Stowcrs,  98  Va.  417,  36  S.  E.  482;  N.  &  W.  Ry.  Co.  v.  Neeley, 
91  Va.  539,  22  S.   E.  367;  Aultman  v.  Gay,  108  Va.  647,  62  S.  E.  946; 
Mclntyre  v.  Smith.  108  Va.  736,  62  S.  E.  930;  Code,  §  3451.     See,  also, 
Abbott's  Civil  Trial  Brief.  520  et  seq.;  note  14  L.  R.  A.  677. 


542  VERDICTS  §  300 

tion  is  made  to  set  it  aside  on  that  ground,  several  courses  are  open 
to  the  trial  court  as  indicated  just  above.  It  may  either  (1)  set 
aside  the  verdict  for  that  reason,  or  (2)  where  the  record  plainly 
discloses  the  amount  of  the  excess,  and  it  may  be  safely  done, 
enter  up  judgment  for  the  correct  amount,  or  (3)  if  the  record 
is  not  in  such  condition,  and  yet  the  verdict  is  excessive,  it  may 
say  to  the  successful  party,  "unless  you  will  release  the  excess, 
I  will  grant  a  new  trial."  This  is  called  putting  the  successful 
party  on  terms.  As  a  general  rule,  no  writ  of  error  lies  in  either 
case  until  after  the  new  trial,  if  one  has  been  had,  and  a  final 
judgment  has  been  entered.  If  the  successful  party  accepts  the 
reduction,  and  takes  judgment  for  the  reduced  amount,  he  can- 
not, in  the  absence  of  statute,  except  because  put  on  terms.47  If 
he  desires  to  except,  he  must  decline  to  allow  the  verdict  to  be 
thus  reduced.  If  the  verdict  is  set  aside,  the  party  whose  ver- 
dict is  set  aside  may  except,  and  after  the  new  trial  is  had  apply 
for  a  writ  of  error  to  test  the  correctness  of  the  ruling  of  the  trial 
court  in  setting  aside  the  first  verdict.  If  not  set  aside,  the  other 
party  may  except  and  apply  for  a  writ  of  error  as  soon  as  judg- 
ment is  rendered.48  In  West  Virginia  it  is  provided  by  stat- 
ute 49  that  in  any  civil  case  where  there  is  an  order  granting  a 
new  trial  or  rehearing,  an  appeal  may  be  taken  from  the  order 
without  waiting  for  the  new  trial  or  rehearing  to  be  had.  In 
Virginia  it  is  provided  "that  in  any  action  at  law  in  which  a  cir- 
cuit or  corporation  court  or  other  law  court  of  record  shall  re- 
quire a  plaintiff  to  remit  a  part  of  his  recovery,  as  ascertained  by 
the  verdict  of  a  jury,  or  else  submit  to  a  new  trial,  such  plaintiff 
may  remit  and  accept  judgment  of  the  court  thereon  for  the  re- 
duced sum  under  protest,  but,  notwithstanding  such  remitter 
and  acceptance,  if  under  protest,  the  judgment  of  the  court  in 
requiring  him  to  remit  may  be  reviewed  by  the  Supreme  Court  of 
Appeals  upon  a  writ  of  error  awarded  the  plaintiff  as  in  other  ac- 

47.  It    is    not    necessary    that    the    losing   party    should    consent    to 
the    remittur.     James    River   Co.   v.   Adams,    17    Gratt.    435;    2   Anno. 
Cas.  675. 

48.  Buena  Vista  Co.   v.   McCandlish,  supra;   Fry  v.   Stowers,  supra; 
Lynch.   Tel.    Co.   v.    Booker,    103   Va.    594,    50    S.    E.    148. 

49.  W.   Va.   Code,   §   4038    (9). 


§   300  ESSENTIALS   OF   A    GENERAL   VERDICT  543 

tions  at  law;  and,  in  any  such  case  in  which  a  writ  of  error  is 
awarded  the  defendant,  the  judgment  of  the  court  in  requiring 
such  remitter  may  be  the  subject  of  review  by  the  Supreme  Court 
of  Appeals,  upon  a  cross  appeal  by  the  plaintiff,  as  in  other  ac- 
tions at  law."50  It  would  seem  from  this  statute  that  where  the 
matter  is  pecuniary,  the  amount  remitted  must  be  not  less  than 
$300,  in  order  to  give  the  Court  of  Appeals  jurisdiction  on  ap- 
plication of  the  party  whose  verdict  is  reduced,  as  the  review  is 
to  be  had  "as  in  other  actions  of  law." 

Where  there  is  no  legal  measure  of  damages,  the  rule  is  be- 
lieved to  be  without  exception  that  the  verdict  of  the  jury  can- 
not be  set  aside  unless  it  is  so  grossly  excessive  (or  inadequate) 
as  to  indicate  that  the  jury  has  been  actuated  by  prejudice,  par- 
tiality, or  corruption,  or  that  they  have  been  misled  by  some  mis- 
taken view  of  the  merits  of  the  case.51  Where  a  motion  was 
made  to  set  aside  as  excessive  a  verdict  of  $15,000  for  the  loss 
of  an  arm,  the  court  said:  "It  is  true  that  $15,000  is  a  larger 
verdict  than  we  usually  encounter  as  an  award  of  damages  for 
the  loss  of  an  arm ;  but  this  furnishes  no  warrant  for  our  inter- 
ference with  the  finding.  The  question  to  be  considered  is  not 
whether  this  court,  if  acting  in  the  place  of  the  jury,  would  give 
more  or  less  than  the  amount  of  the  verdict,  but  whether  the 
damage  awarded  by  the  jury  is  so  large  or  so  small  as  to  indi- 
cate that  the  jury  has  acted  under  the  impulse  of  some  undue 
motive,  some  gross  error,  or  misconception  of  the  subject.  There 
is  no  rule  of  law  fixing  the  measure  of  damages  in  such  cases, 
and  it  cannot  be  reached  by  any  process  of  computation.  It  is, 
therefore,  the  established  rule,  settled  by  numerous  decisions  ex- 
tending from  Parish  &  Co.  v.  Reigle,  11  Gratt.  697,  62  Am.  Dec. 
666,  to  the  recent  case  of  N.  &  W.  Ry.  Co.  v.  Carr,  106  Va.  508, 
56  S.  E.  276,  that  this  court  will  not  disturb  the  verdict  of  the 
jury,  unless  the  damages  are  so  excessive  as  to  warrant  the  be- 

50.  Acts  1906,  p.  251;  3  Va.  Code,  §§  657,  658. 

51.  Norfolk    &    W.    R.    Co.    v.    Shott,    92    Va.    34,    22    S.    E.    811; 
Ches.    &   O.    R.     Co.   v.    Harris,     103     Va.     635,    49     S.     E.     997;     So. 
Ry.  Co.  -v.   Smith,  95  Va.   187,  28   S.   E.   173;   14   End.  PI.   &  Pr.  756. 
Where  the  verdict  is  the  result  of  prejudice  or  passion,  it  cannot  be 
rendered  valid  by  remitting  the  excess.     3  Anno.  Cas.  939. 


544  VERDICTS  §  300 

lief  that  the  jury  must  have  been  influenced  by  partiality  or  prej- 
udice, or  have  been  misled  by  some  mistaken  view  of  the  merits 
of  the  case."32  And,  in  a  West  Virginia  case,  it  was  held  that  a 
verdict  for  $18,000  for  breaking  the  plaintiff's  leg,  whereby  she 
was  unable  to  walk  for  four  months  and  suffered  great  pain  and 
was  put  to  considerable  expense  would  not  be  set  aside  as  ex- 
cessive.53 Where  there  is  no  legal  measure  of  damages,  but  the 
verdict  is  plainly  excessive  the  court  may  put  the  successful  party 
on  terms  to  release  what  it  regards  as  excessive,  although 
there  is  no  standard  by  which  the  excess  can  be  measured.  The 
court  simply  exercises  its  best  judgment  as  to  what  is  right  un- 
der the  circumstances  of  the  case,  subject  to  review  for  error 
committed.54  But  the  court  cannot  act  arbitrarily.  The  assess- 
ment of  damages  is  peculiarly  the  province  of  the  jury,  and 
when  the  question  before  the  jury  is  merely  as  to  the  quantum 
of  damages  to  which  the  plaintiff  is  entitled,  and  there  is  evi- 
dence to  sustain  the  verdict,  no  mere  difference  of  opinion,  how- 
ever decided,  can  justify  an  interference  with  the  verdict  for 
that  cause.  Whether  the  jury  has  been  so  influenced  or  not  is 
to  be  determined  from  the  evidence  in  the  case  alone,  taken  in 
connection  with  the  verdict.  No  extraneous  evidence  on  the 
subject  can  be  received.55  If  the  trial  court  sets  aside  a  ver- 
dict as  excessive,  and  on  a  subsequent  trial  the  verdict  is  materi- 
ally reduced  in  amount,  or  is  found  for  the  opposite  party,  the 
appellate  court  will  take  into  consideration  the  fact  that  some 
discretion  is  vested  in  the  trial  court  in  granting  or  refusing  new 
trials.56 

The  amount  of  damages  given  by  a  verdict  should  not  exceed 
the  damages  claimed  in  the  writ  and  declaration,  but  this  restric- 
tion is  confined  to  the  principal  of  recovery,  that  is  to  say,  if  the 
damages  laid  in  the  declaration  are  large  enough  to  cover  the  prin- 

52.  So.   Ry.  Co.  v.   Smith,  107  Va.  553,   560,  49  S.   E.   372. 

53.  Sheff  v.  Huntington,  16  W.  Va.  309.     As  to  excessive  damage, 
see  note   16  Anno.   Cas.   8;   18   Anno.  Cas.   1209. 

54.  N.  &  W.  R.  Co.  v.  Neeley,  91  Va.  539,  22  S.  E.  367;  Hoffman  v. 
Shartle,  113'  Va.  — ,  74  S.   E.  171. 

55.  14  Encl.  PI.  &  Pr.  760. 

56.  Cit.  Bank  r.  Taylor,  104  Va.  164,  51   S.  E.  159. 


§    300  ESSENTIALS    OP   A    GENERAL    VERDICT  545 

cipal  of  the  damages  allowed  by  the  verdict  it  is  sufficient.57 
But  if  there  is  such  excess  in  the  verdict,  and  judgment  is  ren- 
dered therefor  by  the  trial  court,  it  has  been  held  that  no  writ  of 
error  lies  unless  such  excess  is  within  the  jurisdictional  amount 
of  the  appellate  court.58  In  order  to  sustain  a  verdict  for  dam- 
ages, it  is  not  necessary  that  the  damages  should  be  laid  in  the 
ad  damnum  clause  of  the  declaration,  although  that  would  be  the 
better  form  of  pleading.  A  declaration  in  an  action,  even  though 
sounding  in  damages,  is  not  demurrable  because  it  does  not  state 
the  amount  of  damages  claimed  in  the  form  of  an  averment.  It 
is  sufficient  if  the  damages  claimed  appear  in  any  part  of  the  dec- 
laration. For  instance,  it  has  been  held  sufficient  where  in  the 
opening  statement  of  the  declaration  the  plaintiff  complained  oi 
the  defendant  "who  has  been  summoned  to  answer  the  plaintiff 
on  a  plea  of  trespass  on  the  case  to  recover  against  him  the  sum 
of  $10,000  damages."59 

10.  The  Verdict  Should  Not  Be  Too  Small.— In  Virginia  it 
is  provided  by  statute60  that  "a  new  trial  may  be  granted  as  well 
where  the  damages  are  too  small  as  where  they  are  excessive." 
The  same  rule  with  reference  to  setting  aside  the  verdict  of  a 
jury  when  there  is  no  legal  measure  of  damages  applies  where 
the  damages  are  too  small  as  are  applied  where  the  damages  are 
excessive,  and  if  it  appears  that  the  verdict  was  induced  by 
prejudice  or  passion  it  will  be  set  aside.  Where  the  jury  gave  a 
young  girl  of  good  character  a  verdict  for  "$5  and  costs"  for  slan- 
der upon  her  chastity,  it  was  set  aside  by  the  Court  of  Appeals  as 
inadequate  because  indicating  passion  or  prejudice.61  The  rule 
is  probably  otherwise  in  England,  but  in  the  States  generally  it 
is  held  that  if  there  is  any  fixed  standard  of  measurement,  and 
this  has  been  plainly  ignored  or  violated  by  the  jury  to  the  prej- 

57.  Ga.   Home  Ins.  Co.  v.  Goode,  95  Va.  750,  30  S.   E.  366.     As  to 
the  effect  of  a  verdict  for  damages  in  excess  of  the  amount  laid  in 
the  declaration  see  ante,  §  88,  pp.  145,  146. 

58.  Gibboney  v.  Cooper,  57  W.  Va.  74,  49  S.  E.  939. 

59.  Jenkins  v.  Montgomery  (W.  Va.),  72  S.   E.  1087. 

60.  Code,   §   3392. 

61.  Blackwell  v.   Landreth,  90  Va.  748,   19  S.   E.  791.     As  to   inad- 
equacy of  verdict,  see  note,  8  Anno.  Cas.  903;  17  Id.  1073;  20  Id.  879. 

—35 


546  VERDICTS  §  300 

udice  of  a  party,  he  may  have  the  verdict  set  aside  for  inadequacy 
of  the  amount  allowed.62  In  slander,  libel,  malicious  prosecu- 
tion, trespass  vi  et  armis,  and  the  like,  there  is  no  fixed  standard, 
and  unless  it  appears  in  some  way  that  the  jury  has  been  actu- 
ated by  improper  motives,  or  have  been  misled,  or  have  grossly 
misconceived  the  law,  the  verdict  will  be  permitted  to  stand. 

Interest. — At  common  law,  interest  was  not  allowed,  but  it  is 
now  generally  provided  by  statute  that  all  judgments  shall  bear 
interest  from  date,  where  the  verdict  is  silent  on  the  subject.  In 
Virginia,  the  jury  is  permitted,  in  actions  of  tort,  as  well  as  con- 
tract, to  allow  interest  and  fix  the  date  from  which  it  is  to  run, 
and  if  a  verdict  is  rendered  which  does  not  allow  interest,  the 
sum  found  bears  interest  from  the  date  of  the  verdict.63  On  a 
promise  to  pay  money  at  a  given  day,  interest  runs  from  that  day 
as  an  incident  of  the  debt,  and  neither  courts  nor  juries  can  de- 
prive the  creditor  of  it.  If  the  creditor  is  absent  from  the  coun- 
try (out  of  the  State),  when  the  debt  falls  due  and  has  no  agent 
to  receive  it,  or  if  the  debtor  and  creditor  are  on  opposite  sides 
of  hostile  lines,  interest  does  not  run  during  that  period,  but  the 
burden  of  proof  is  always  on  the  debtor  to  show  that  he  is  not 
to  pay  interest.64  A  promise  to  pay  money  after  date  with  in- 
terest is  a  promise  to  pay  interest  from  date,65  and  if  the  prom- 
ise is  to  pay  extraordinary  interest  from  date,  it  is  held  in 
probably  a  majority  of  the  States  that  the  extraordinary  interest 
continues  after  maturity  until  payment.  This  rule  prevails  in 
Florida,  Mississippi,  Missouri,  North  Carolina,  Tennessee,  Texas, 
West  Virginia,  and  other  States.  But  only  the  legal  rate  after 
maturity  is  allowed  in  the  United  States  courts,  Arkansas,  Ala- 
bama, Connecticut,  Kentucky,  Pennsylvania,  Rhode  Island,  South 
Carolina,  and  other  States.  If  the  contract  is  for  less  than  the 
legal  rate,  then  after  maturity  probably  a  majority  of  the  States 

62.  Abbott's  Civil  Trial  Brief,  521,  ff. 

63.  Lewis  v.  Arnold,  13  Gratt.  454;  Fry  v.  Leslie,  87  Va.  269,  12  S. 
E.  671;  Code.  §  3390. 

64.  Roberts  v.   Cocke,  28   Gratt.  207;   McVeigh  v.   Howard,   87   Va. 
599,  605,  13  S.  E.  31;  4  Min.  Inst.  909. 

65.  Cecil  v.  Hicks,  29  Gratt.  1;   Evans  v.  Rice,  96  Va.  50,  30  S.    E. 
463;  Cromwell  v.   Sac  County,  96  U.  S.  51. 


§  300  ESSENTIALS  OF  A  GENERAL  VERDICT  547 

hold  that  the  legal  rate  prevails  until  payment.  This  doctrine  is 
held  in  Alabama,  Maryland,  Mississippi,  New  York,  Pennsyl- 
vania, South  Carolina,  Wisconsin  and  other  States.  In  some 
States  the  subject  is  regulated  by  statute,  as  in  California,  Kan- 
sas and  Kentucky.66  In  Virginia  the  question  has  not  been  ad- 
judged, nor  can  it  be  settled  by  analogy  to  the  holdings  in  other 
States,  as  there  is  no  uniformity  about  their  holdings  where  the 
contract  is  to  pay  more  or  less  than  the  legal  rate.  Where  the 
contract  is  to  pay  a  greater  rate,  the  debtor  can  always  relieve 
himself  by  paying  the  debt  and  getting  rid  of  the  excessive  rate 
of  interest,  and  it  would  be  to  his  interest  to  do  so,  whereas  if 
the  contract  is  for  less  than  the  legal  rate,  it  is  greatly  to  the  in- 
terest of  the  debtor  not  to  pay,  and  he  has  no  inducement  to  do 
so,  and  the  contract  on  the  part  of  the  creditor  to  accept  less  than 
the  usual  rate  is  generally  induced  by  temporary  conditions,  and 
the  ability  of  the  creditor  to  collect  his  money  either  on  demand 
or  upon  short  notice.  It  would  not  seem,  therefore,  to  be  incon- 
sistent to  declare  that  if  the  contract  is  for  a  greater  rate  that 
rate  shall  continue  until  payment,  and  if  for  a  less  rate,  the  le- 
gal rate  should  prevail  after  demand  of  payment.  This  would 
seem  to  reach  the  justice  of  the  situation. 

It  is  held  in  some  jurisdictions  that  the  state  legislature  may 
reduce  or  take  away  interest  on  judgments  previously  rendered. 
It  is  said  that  this  is  not  interest  in  a  strict  sense,  but  damages 
for  detention,  that  such  a  law,  though  retrospective,  does  not  im- 
pair the  obligation  of  the  contract,  nor  deprive  the  creditor  of 
due  process  of  law.67  The  rule  is  otherwise  in  Virginia68  and 
the  better  reasoning  would  seem  to  indicate  that  it  is  otherwise 
on  principle.69  In  Virginia  the  interest  cannot  be  abated  after 
having  been  once  reduced  to  judgment.70  The  Virginia  doctrine 
is  that,  in  contracts  for  the  payment  of  money,  interest  is  not  al- 
ee. 16  Am.  &  Eng.  End.  Law  (2nd  Ed.)  1058-9;  6  Va.  Law  Reg. 
655.  ff. 

67.  Read  v.  Mississippi  County,  69  Ark.  365,  63  S.  W.  807,  86  Am. 
St.  Rep.  202;  Morley  v.  Lake  Shore  Ry.  Co.,  146  U.  S.  162. 

68.  Roberts  v.   Cocke.  28    Gratt.  207. 

69.  Ratcliffe  7-.  Anderson,  31   Gratt.  105. 

70.  Rowe  v.  Hardy,  97  Va.  674,  34  S.  E.  625. 


VERDICTS  §    301 

lowed  as  damages,  but  as  an  incident  to    the    debt,    and    neither 
courts  nor  juries  have  any  discretion  to  refuse  it.71 

There  is  much  conflict  of  authority  as  to  the  time  from  which 
interest  will  run  on  money  paid  by  mistake.  Generally,  he  who 
has  the  use  of  another's  money  must  pay  interest  on  it  from  the 
time  he  receives  it  until  he  repays  it,  unless  there  is  an  agree- 
ment, express  or  implied,  to  the  contrary ;  but,  according  to  the  bet- 
ter rule,  where  money  has  been  paid  or  received  under  a  mutual 
mistake  of  fact,  and  no  fraud  or  improper  conduct  can  be  im- 
puted to  the  party  receiving  it,  interest  will  not  be  allowed  ex- 
cept from  the  time  when  the  mistake  was  discovered  and  repay- 
ment demanded.72 

§    301.    Entire  damages  on  defective  counts. 

At  common  law,  if  there  was  a  general  verdict  for  the  plain- 
tiff on  a  declaration  containing  several  counts,  one  of  which  was 
bad,  and  entire  damages  were  given,  it  was  necessary  to  arrest 
the  judgment,  as  the  court  could  not  tell  on  which  count  the  ver- 
dict was  founded,  or  how  much  was  founded  on  one  count  and 
how  much  on  another,  and  it  could  not  apportion  the  damages.  At 
an  early  period,  prior  to  1807,  this  rule  of  the  common  law  was 
changed  by  statute,  which  provides :  "Where  there  are  several 
counts,  one  of  which  is  faulty,  the  defendant  may  ask  the  court 
to  instruct  the  jury  to  disregard  it;  yet,  if  entire  damages  be 
given,  the  verdict  shall  be  good."73  By  entire  damages  is  meant 
a  lump  sum  for  all  the  causes  of  complaint  set  forth  in  the  dec- 
laration, without  anything  in  the  verdict  to  indicate  how,  if  at 
all,  these  damages  were  apportioned  by  the  jury  between  the  sev- 
eral counts.  Apparently,  therefore,  if  a  plaintiff  sues  for  a 
single  cause  of  action,  and  sets  it  forth  in  two  or  more  counts 
in  his  declaration,  or  for  two  or  more  wrongs  in  the  same  dec- 
laration, and  sets  forth  each  wrong  in  a  separate  count,  one  or 
more  of  which  counts,  in  each  case,  is  bad,  yet  "if  entire  dam- 
ages be  given,  the  verdict  shall  be  good."  This  statute  first 

71.  Tidball  v.  Bank,  100  Va.  741,  42  S.  E.  867. 

72.  Hall  v.  Graham,  112  Va.  560,  72  S.  E.  105. 

73.  1  Rev.  Code  (1819),  p.  512,  §  104;  Code  (1904),  §  3389. 


§    301  ENTIRE  DAMAGES  OX  DEFECTIVE  COUNTS  549 

came  under  review  in  1807.74  In  that  case  there  was  a  general 
demurrer  to  the  declaration  as  a  whole,  and  not  to  the  separate 
counts.  The  defendant  had  the  right  to  demur  to  each  count 
separately,  as  each  count  is  regarded  as  a  separate  declaration,75 
but  he  did  not  choose  to  do  this.  He  demurred  simply  to  the 
declaration  as  a  whole.  At  one  time  the  effect  of  such  a  demur- 
rer was  to  strike  out  the  bad  counts  and  leave  the  good  intact,76 
but  this  practice  was  soon  departed  from,  and  the  established  doc- 
trine at  common  law  and  in  Virginia  from  the  earliest  day  has 
been  that  if  a  declaration  contained  several  counts,  and  the  de- 
murrer was  to  the  declaration  as  a  whole,  the  demurrer  was 
overruled,  because  the  effect  of  the  demurrer  was  to  state  that 
nowhere  in  the  declaration  had  a  case  been  stated,  and  if  a  case 
was  stated  anywhere  in  the  declaration,  the  demurrer  was  bad.77 
In  the  case  cited  in  the  margin,  there  was  no  bill  of  exception 
setting  out  the  evidence,  nor  any  demurrer  to  the  evidence,  and 
hence  the  evidence  was  not  made  a  part  of  the  record,  and  the 
court  could  not  see  whether  the  evidence  at  the  trial  was  ap- 
plicable to  the  bad  counts  or  the  good,  and  inasmuch  as  the  de- 
fendant had  not  availed  himself  of  the  above  statute,  the  ver- 
dict was  upheld  in  accordance  with  the  very  terms  of  the 
statute.  The  question  is  discussed  at  some  length  in  the  seri- 
atim opinions  of  the  judges.  The  matter  was  again  the  subject 
of  discussion  in  1827  ;78  but  here  again  the  demurrer  was  to  the 
declaration  as  a  whole,  and  the  holding  in  Roe  v.  Crutchfield 
was  adhered  to.  The  statute  again  came  under  review  in 
1836.79  -Here  the  subject  was  discussed  at  some  length  by  coun- 
sel in  argument  and  by  the  judges  in  their  opinions,  and  again 
Roe  T.  Crutchfield  was  affirmed.  In  this  case,  also,  there  was 
an  original  declaration  containing  four  counts,  three  of  which 
were  regarded  bad,  and  there  was  a  demurrer  to  the  dec- 
laration as  a  whole.  The  demurrer  was  overruled,  but  the 

74.  Roe  ?•.  Crutchfield,  1  H.  &  M.  361. 

75.  Roe  z:  Crutchfield,  supra. 

76.  Godfrey's  Case,  11   Coke  45a. 

77.  Ante,  §  202,  and  cases  cited. 

78.  Cook  f.  Thornton.  6  Rand.  8. 

79.  Power  r.  Ivie,  7  Leigh  147. 


550  VERDICTS  §  301 

plaintiff,  not  being  satisfied  with  his  declaration,  substituted  a 
new  declaration  for  it  containing  eleven  counts,  all  of  which 
were  regarded  by  the  appellate  court  as  bad  except  one,  but  the 
demurrer  was  to  the  declaration  as  a  whole,  and  not  to  each 
count  thereof,  so  that  there  was  involved  the  same  question  as 
in  the  case  first  cited,  and  it  was  held  that,  as  the  defendant  had 
not  availed  himself  of  the  statute,  the  verdict  would  be  upheld, 
although  the  appellate  court  held  that  ten  of  the  counts  in  the 
declaration  were  bad  and  only  one  good;  the  trial  court  having 
overruled  the  demurrer  as  to  all  the  counts.  The  judges  deliv- 
ered seriatim  opinions,  and  Judge  Brockenbrough,  discussing 
the  demurrer  to  the  original  declaration,  and  treating  it  as  still 
in  the  case,  in  the  course  of  his  opinion  says :  "No  injury  was 
done  to  the  defendant  by  overruling  the  demurrer,  considering 
it  as  a  demurrer  to  each  of  the  three  counts,  because  there  was 
one  good  count,  which  it  appears  the  plaintiff  supported  by  his 
proofs."  This  was  wholly  unnecessary  to  the  decision  of  the 
case,  as  it  is  followed  immediately  by  the  statement  that  even 
if  he  was  wrong  in  this  view,  yet  on  the  amended  declaration 
the  verdict  would  have  to  be  sustained  because  the  demurrer  was 
to  the  declaration  as  a  whole.80  From  that  time  until  now 
(three-quarters  of  a  century)  the  statute  has  not  been  noticed 
by  the  bar,  nor  mentioned  by  the  court. 

There  is  a  corresponding  statute,  however,  applicable  to  crim- 
inal cases,  which  has  been  construed.  Section  4045  of  the  Code 
declares :  "Where  there  are  several  counts  in  an  indictment  or 
information,  and  a  general  verdict  of  guilty  is  found,  judgment 
shall  be  entered  against  the  accused,  if  any  count  be  good, 
though  others  may  be  faulty,  but  on  the  trial  the  court,  on  mo- 
tion of  the  accused,  may  instruct  the  jury  to  disregard  any  count 
that  is  faulty."  This  statute  was  first  enacted  at  the  general  re- 

80.  The  court  paid  the  following  compliment  to  counsel  in  the  trial 
court:  "This  record  certainly  exhibits  but  a  poor  specimen  of  skill 
in  pleading.  Here  are  fifteen  counts  in  a  declaration  in  a  plain  action 
of  assumpsit,  the  greater  'part  of  which  are  so  defective  that  they 
will  not  stand  the  test  of  a  general  demurrer.  Yet  the  defendant's 
attorney  was  not  adroit  enough  to  avail  himself  of  the  defects  and 
has  sustained  a  defeat  in  the  court  below,  d*nd  I  do  not  think  this 
court  can  help  him." 


§  301  ENTIRE;  DAMAGES  ON  DEFECTIVE;  COUNTS  551 

vision  of  the  criminal  laws  of  Virginia  in  1848.  It  had  been 
previously  held  that  as  the  jury  fixed  the  penalty  in  Virginia, 
the  verdict  in  such  case  should  be  set  aside  as  it  could  not  be 
told  on  which  count  the  verdict  was  rendered.81  It  was  said  by 
the  Revisers  of  1849  in  their  Report82  that  this  section  was 
enacted  probably  to  meet  these  cases.  This  statute  first  came 
under  review  in  Rand  v.  Com.,  9  Gratt.  738,  but  the  court 
deemed  it  unnecessary  to  construe  the  statute  as  a  whole,  because 
it  held  that  the  prisoner  had  in  effect  brought  himself  within 
the  terms  of  the  latter  part  of  the  statute  allowing  the  defend- 
ant to  move  the  court  to  exclude  the  defective  count  from  the 
consideration  of  the  jury.  It  next  came  under  review  in  Shif- 
flet  v.  Com.,  14  Gratt.  652,  and  the  prior  decisions  and  the  effect 
of  the  statute  were  discussed  by  the  court,  and  the  question 
made  by  the  statute  squarely  met.  In  that  case  the  prisoner  was 
charged  with  a  felony  by  an  indictment  containing  three  counts, 
one  of  which  was  plainly  defective  and  had  been  quashed. 
There  was  a  change  of  venue  afterwards,  and  the  prisoner  was 
re-arraigned  and  pleaded  to  the  whole  indictment,  taking  no  no- 
tice of  the  fact  that  one  count  had  been  quashed,  so  that  he  was 
tried  on  the  whole  indictment.  In  construing  this  statute,  the 
court  said :  "//  it  be  conceded  that  he  did  not,  in  effect,  waive 
the  benefit  of  the  order  quashing  the  second  count,  and  that  it 
was  error  to  arraign  and  try  him  on  the  whole  indictment  after 
that  count  had  been  quashed,  still  I  think  it  is  not  an  error  to  his 
prejudice,  and  therefore  not  good  ground  for  the  reversal  of  the 
judgment.  At  common  law,  there  was  a  settled  distinction  be- 
tween a  general  verdict  in  civil  and  in  criminal  proceedings.  In 
the  former  case,  if  some  of  the  counts  were  bad  when  entire 
damages  were  given,  it  was  necessary  to  arrest  the  judgment, 
because  the  court  could  not  apportion  the  damages;  while  in  the 
latter,  the  court  ascertained  the  penalty,  and  could  apply  it  to  the 
good  counts  which  were  supported  by  the  evidence ;  and  there- 
fore, where  the  defendant  was  found  guilty  of  the  charge  in 
general,  if  there  were  any  good  counts,  the  verdict  was  sufficient, 
and  an  entire  judgment  might  have  been  given.  1  Chit.  Cr.  Law 

81.  Mowbray  v.   Com.,   11   Leigh   643;   Clare  v.   Com.,  3   Gratt.   615. 

82.  Report  of  Revisors   (1849),  ch.  208,  §  34. 


552  VERDICTS  §  301 

249,  640.  At  an  early  period  in  this  state,  the  common  law  rule 
in  civil  cases  was  changed  by  statute,  which  provided,  that 
"when  there  are  several  counts,  one  of  which  is  faulty,  and  en- 
tire damages  are  given,  the  verdict  shall  be  good ;  but  the  de- 
fendant may  apply  to  the  court  to  instruct  the  jury  to  disregard 
the  faulty  count."  1  Rev.  Code  of  1819,  p.  512,  §  104.  The 
rule  in  criminal  cases  remained  unchanged  by  statute  until  a 
very  recent  period,  as  will  be  presently  noticed. 

"In  Kirk's  Case,  9  Leigh  627,  it  was  held  that  the  common 
law  rule  was  applicable  to  a  conviction  for  felony,  punishable 
by  imprisonment  in  the  penitentiary,  and  that  the  judgment 
should  not  be  reversed  if  any  count  was  good,  even  though  the 
court  below  overruled  the  motion  of  the  prisoner  to  quash  the 
bad  counts.  In  Mowbray's  Case,  11  Leigh  643,  and  Clare's 
Case,  3  Gratt.  615,  it  was  held,  contrary  to  Kirk's  Case,  that  the 
common  law  rule  was  not  applicable  to  offences  punishable  by 
confinement  in  the  penitentiary,  as  the  reason  of  the  rule  did  not 
apply.  Thus  stood  the  law  and  the  adjudications  upon  it  when 
the  act  of  March  14,  1848,  was  passed,  containing  a  provision 
(see  Sess.  Acts,  p.  152,  §  43),  which  has  been  since  substantially 
embodied  in  the  Code,  p.  778,  §  34,  in  these  words :  'When 
there  are  several  counts  in  an  indictment  or  information,  and  a 
general  verdict  of  guilty  is  found,  judgment  shall  be  entered 
against  the  accused,  if  any  count  be  good,  though  others  be 
faulty.  But  on  the  trial,  the  court,  on  the  motion  of  the  ac- 
cused, may  instruct  the  jury  to  disregard  any  count  that  is 
faulty.'  See  Rand's  Case,  9  Gratt.  738,  in  which  the  cases  and 
statutes  on  this  subject  are  reviewed  in  the  opinion  of  the  court, 
delivered  by  Judge  Daniel.  The  effect  of  the  provision  in  the 
Code  is  to  make  the  common  law  rule  applicable  to  all  crim- 
inal cases,  whatever  may  be  the  mode  of  punishment,  and  how- 
ever the  measure  of  it  may  be  ascertained.  But  the  accused  is 
effectually  protected  from  injury,  by  the  right  which  is  given 
him  to  have  the  faulty  counts  excluded  from  the  consideration 
of  the  jury.  If  he  does  not  avail  himself  of  that  right;  if  he 
does  not  move  the  court  to  instruct  the  jury  to  disregard  the 
faulty  counts,  how  can  he  complain  of  injury?  How  is  he  prej- 
udiced by  the  judgment?  Is  not  the  presumption  conclusive, 


§  301  ENTIRE  DAMAGES  ON  DEFECTIVE  COUNTS  553 

that  if  he  does  not  make  the  motion,  it  is  because  there  is  no 
evidence  to  sustain  the  faulty  count,  or  it  can  do  him  no  harm? 
In  this  case,  the  first  and  third  counts  are  certainly  good,  even 
if  the  second  be  faulty,  and  a  general  verdict  of  guilty  has  been 
found.  Why  should  not  a  judgment  be  entered  against  the  ac- 
cused according  to  the  direction  of  the  statute?  A  judgment  has 
been  entered.  Why  should  it  be  reversed?  Is  it  because  it  was 
error  in  'the  court  to  try  the  prisoner  on  the  who!e  indictment, 
when  one  of  the  counts  had  been  quashed?  He  voluntarily 
pleaded  to  the  whole  indictment,  and  had  only  to  move  the  court 
to  exclude  the  second  count  from  the  consideration  of  the  jury, 
the  court  having  already  decided  it  to  be  faulty.  He  would 
have  made  that  motion,  if  he  could  have  derived  any  benefit 
from  it. 

"I  think  there  is  no  error  in  the  judgment  and  am  for  affirm- 
ing it." 

It  would  seem  clear  that  the  prisoner,  by  pleading  to  the  whole 
indictment,  when  arraigned  the  second  time,  waived  the  benefit 
of  the  previous  order  quashing  the  second  count,  and  that  the 
first  sentence  quoted  above  from  Judge  Moncure's  opinion  was 
unnecessary  to  the  decision  of  the  case,  and  that  the  case  might 
have  been  safely  rested  on  this  waiver  by  the  prisoner.  In  a 
later  case,  where  there  was  no  demurrer  to  the  defective  count, 
it  is  said :  "and  the  verdict,  being  general,  if  supported  by  either 
count,  must  be  sustained."83  In  Richards  v.  Com.,  81  Va.  110, 
there  were  two  counts  in  the  indictment,  one  of  which  was  bad, 
but  the  evidence  being  certified,  the  court  could  see  that  the 
verdict  could  not  have  been  found  on  the  good  count,  and  con- 
sequently set  it  aside,  although  there  was  no  motion  to  disre- 
gard that  count.  In  Jones  v.  Com.,  86  Va.  950,  12  S.  E.  950, 
it  was  said  that  the  judgment  should  have  been  arrested  because 
one  count  of  the  indictment  was  defective,  there  having  been 
a  demurrer  to  each  count  overruled.  The  statute84  was  not 
cited,  and  only  those  two  cases  were  cited  which  were  decided 
before  the  statute  was  enacted,  so  that  this  case  can  hardly  be 
regarded  as  authority  under  the  statute  for  the  proposition  that 

83.  Hendricks  r.  Com.,  75  Va.  934,  943. 

84.  Code,  §  4045. 


554  VERDICTS  §   301 

if  either  count  is  defective  the  verdict  must  be  set  aside.  This 
is  the  last  reported  case  arising  under  the  criminal  statute.  The 
statutes  in  civil  and  criminal  cases  are  practically  the  same  and 
whatever  construction  is  put  upon  one  should  be  placed  upon  the 
other. 

There  is  a  very  similar  statute  in  Illinois  providing  that 
"whenever  an  entire  verdict  shall  be  given  on  several  counts, 
the  same  shall  not  be  set  aside  or  reserved  on  the  ground  of  any 
defective  count,  if  one  or  more  of  the  counts  in  the  declaration 
is  sufficient  to  sustain  the  verdict."  Under  this  statute  it  has 
been  held  that  when  there  is  a  good  count  in  the  declaration  to 
support  the  judgment  a  motion  in  arrest  of  judgment  cannot  be 
made.85 

So  much  for  the  history  of  the  statute  and  the  decisions  there- 
under. In  recent  years  it  is  a  well  established  doctrine  of  the 
court  that  if  error  be  committed  in  overruling  the  demurrer  to 
a  bad  count  of  a  declaration,  it  is  ground  for  reversal  (as  the 
court  cannot  tell  on  which  count  the  jury  rendered  their  ver- 
dict), unless  the  court  can  see  from  the  whole  record,  including 
the  evidence  certified,  that  the  defendant  could  not  have  been 
prejudiced  thereby.86  In  none  of  the  recent  cases  is  any  ref- 
erence made  to  the  Virginia  statute  above  mentioned,  and  it  re- 
mains to  be  considered  whether  the  recent  cases  are  in  conflict 
with  the  statute  and  the  cases  construing  it,  hereinbefore  men- 
tioned. At  common  law,  a  defendant  could  either  demur  or 
plead,  but  could  not  do  both,  and  hence  had  no  opportunity  of 
objecting  to  defects  of  the  character  referred  to  by  the  statute. 
If  he  demurred  to  the  declaration  and  to  each  count  thereof  and 
his  demurrer  was  sustained,  there  would  be  no  verdict.  If  the 
demurrer  was  overruled,  then  judgment  was  given  against  him 
for  want  of  an  answer  to  the  declaration,  unless  he  obtained  the 
leave  of  the  court  to  withdraw  his  demurrer,  and  if  he  did  this, 

85.  Gebbie  v.  Mooney,  121  111.  255,  12  N.  E.  472;  Shreffler  v.  Nadel- 
hoffer,  133  111.  536,  25  N.  E.  630;  Swift  v.  Fue,  167  111.  443,  47  N.  E. 
761.     See,  also,   Bond  v.  Dustin,   112  U.   S.  604. 

86.  Ante,   §   208,   and   cases   cited;   Va.   Cedar   Works  v.   Dalea,   109 
Va.  333,  64  S.  E.  41;  Newport  News  v.  Nicolopoolos,  109  Va.  165,  63 
S.  E.  443;  C.  &  O.  R.  Co.  v.  Melton,  110  Va.  728,  67  S.  E.  346. 


§    301  ENTIRE  DAMAGES    ON    DEFECTIVE    COUNTS  555 

then  the  declaration  would  remain  without  any  objection  what- 
ever to  it  on  the  record.  It  is  true  that  he  might  demur  to  the 
bad  counts  and  plead  to  the  good,  but  the  same  rule  applied,  and 
if  his  demurrer  to  the  bad  count  was  overruled,  judgment  would 
be  given  against  him  on  that  count  for  want  of  an  answer,  un- 
less he  withdrew  it,  and  if  he  did  there  was  no  objection  to  the 
count.  The  result  was,  as  stated,  that  if  the  declaration  con- 
tained several  counts,  some  good  and  others  bad,  and  entire 
damages  were  found,  the  trial  court  could  not  tell  upon  which 
count  the  jury  rendered  their  verdict,  and  hence  a  motion  in  ar- 
rest of  judgment  was  necessary  to  prevent  injustice.  To  meet 
this  situation,  the  statute  in  question  was  passed,  providing  a 
method  by  which  the  defective  counts  might  be  effectually  re- 
moved from  the  consideration  of  the  jury,  and  declaring  that 
unless  this  was  done,  the  judgment  should  not  be  arrested  when 
entire  damages  were  found,  if  any  count  in  the  declaration  was 
good.  Now,  however,  the  defendant  may  plead  as  many  sev- 
eral matters  of  law  or  fact  as  he  chooses,  and  as  he  can  both 
demur  and  plead,  he  can  readily  bring  to  the  attention  of  the 
court  by  a  demurrer  every  defective  count  in  the  declaration, 
but  this  fact  does  not  take  away  from  the  defendant  the  remedy 
given  him  by  the  other  statute.87  If  a  declaration  contains  sev- 
eral counts,  and  there  is  a  demurrer  to  the  declaration  as  a 
whole,  we  have  seen  that  the  demurrer  must  be  overruled  be- 
cause it  is  defective  in  not  bringing  before  the  court  the  consid- 
eration of  defects  in  each  separate  count.  The  demurrer,  then, 
in  that  form,  is,  in  effect,  no  demurrer  to  the  separate  counts. 
It  is  no  valid  demurrer  to  each  count  and  the  statute88  was 
enacted,  it  would  seem,  to  meet  the  case  where  there  had  been 
no  demurrer,  or  a  defective  demurrer,  or  the  defective  count 
had  not  been  otherwise  brought  to  the  attention  of  the  court. 
The  language  of  the  statute,  however,  is  broad  enough  not  only 
to  cover  these  cases,  but  also  the  case  where  there  has  been  a 
demurrer  to  the  defective  count  which  has  been  overruled;  but 
if  there  has  been  a  demurrer  to  the  defective  count  which  has 
been  overruled,  it  would  seem  to  be  a  useless  process  to  again 

87.  Code.  §  3389. 

88.  Code.  §  3389. 


556  VERDICTS  §  301 

call  the  attention  of  the  court  to  the  defect  by  asking  the  court  to 
instruct  the  jury  to  disregard  that  count.  As  said  by  Judge 
Tucker  in  his  dissenting  opinion  in  Power  v.  Ivie,  supra,  "It  is 
not  incumbent  on  the  defendant  to  move  the  court  at  the  trial 
to  instruct  the  jury  to  disregard  that  count  as  faulty  which  the 
court  had  just  decided  to  be  good."  Some  such  view  must  have 
been  entertained  by  the  profession,  as  the  statute  has  not  been 
brought  to  the  attention  of  the  court  in  civil  matters  for  three- 
quarters  of  a  century.  Under  the  modern  cases,  if  the  appellate 
court  can  see  that  the  verdict  is  founded  on  the  good  count  it 
will  uphold  the  verdict.89  If  it  can  see  that  it  was  founded  on 
the  bad  count  it  will  set  it  aside.90  If  it  is  unable  to  see  upon 
which  count  the  verdict  was  rendered,  but  the  evidence  was  ap- 
plicable to  both,  it  will  set  it  aside.  The  modern  holding  seems 
to  be  so  manifestly  just  and  proper  that  it  is  not  likely  that  the 
court  will  reverse  the  long  line  of  cases  establishing  it,  but  will 
construe  the  statute  as  furnishing  a  cumulative  remedy,  and 
treat  the  demurrer  to  the  defective  count  a-s  in  the  nature  of  a 
request  to  the  court  to  instruct  the  fury  to  disregard  that  count.'9'1 
If  there  has  been  no  demurrer,  or  the  demurrer  is  to  the  declara- 
tion as  a  whole,  which  has  to  be  overruled  for  the  reasons 
stated,  then  the  statute  furnishes  the  desired  relief,  but  if  there 
is  a  demurrer  to  each  count  or  to  the  defective  count,  and  it  is 
sustained  as  to  the  defective  count  or  counts,  they  are  thereby 
withdrawn  from  the  consideration  of  the  jury;  but  if  overruled 
the  demurrer  will  still  be  treated  as  a  request  to  the  court 
(though  overruled  it  is  true)  to  instruct  the  jury  to  disregard 
such  count  or-  counts,  and  if  the  defendant  may  have  been  prej- 
udiced thereby,  the  verdict  will  be  set  aside  and  a  new  trial 
awarded.  As  the  demurrer  is  per  se  a  part  of  the  record,  no  bill 
of  exception  is  necessary. 

89.  Newport   News  v,   Nicolopoolos,  supra. 

90.  Richards  v.  Com.,  sufrra. 

91.  In   Rand  v.   Com.,   9   Gratt.   738,   an   objection   to   evidence  was 
treated  as  a   request  to  instruct   the  jury  to   disregard   the   count   to 
which  the  evidence  was  applicable. 


§  302  OBJECTIONS  TO  VERDICTS  557 

§    302.    Objections  to  verdicts. 

Objections  either  to  the  amount  or  the  form  of  a  verdict  must 
be  made  in  the  trial  court,  else  they  will  not  be  noticed  on  a  writ 
of  error.92  A  verdict  is  a  part  of  the  record,  and  no  bill  of  ex- 
ception is  needed  to  put  it  on  the  record,93  but  objections  to 
verdicts  are  no  part  of  the  record,  and,  if  overruled,  must  be 
made  a  part  of  the  record  by  a  proper  bill  of  exception.  The 
subject  of  impeachment  of  verdicts  for  various  reasons  is  dis- 
cussed in  the  next  succeeding  chapter.  Verdicts  are  to  be  liber- 
ally construed  and  upheld  if  possible.  Mere  form  should  not, 
as  a  rule,  affect  them,  if  the  court  can  clearly  see  what  is  meant.94 
As  to  the  power  of  the  trial  court  to  direct  a  verdict,  see  ante,  § 
273. 

92.  Phillips   Schneider   Brewing  Co.   v.   Amer.    Ice   Co.    (C.   C.   A.), 
77  Fed.  138. 

93.  Roanoke  L.  Co.  r.  Karn,  80  Va.  at  591;  Daube  v.  Phil.,  etc.,  Co. 
(C.  C.  A.),  77  Fed.  713. 

94.  Rickett  r.   Rickett,   2   Bibb.    (Ky.),   178;    Black  v.   Va.   Portland 
Cement  Co.,  106  Va.  121,  55  S.  E.  587. 


CHAPTER  XXXIX. 
MOTIONS  AFTER  VERDICT. 

§  303.  Motion   for   a  new   trial. 

1.  Error  or  misconduct  of  the  judge. 

2.  Error  or  misconduct  of  the  jury. 

Impeachment    of    verdict    by    jurors. 

3.  Misconduct  of  counsel. 

4.  Misconduct   of  parties. 

5.  Misconduct  of  third  persons. 

6.  After-discovered    evidence. 

7.  Verdict    contrary   to   the    evidence. 

8.  Accident  and  surprise. 

9.  Damages    excessive    or   too    small. 
§  304.  Number   of  new   trials — conditions. 

§  305.  Arrest  of  judgment. 

§  306.  Judgment    non    obstante    veredicto. 

§  307.  Repleader. 

§  308.  Venire  facias  de  novo. 

The  principal  motions  that  are  made  after  verdict  are  (1)  for 
a  new  trial,  (2)  in  arrest  of  judgment,  (3)  judgment  non  ob- 
stante veredicto,  (4)  repleader,  and  (5)  venire  facias  de  novo. 

§    303.    Motion  for  a  new  trial.1 

It  is  said  that  a  motion  for  a  new  trial  should  be  made  before 
a  motion  in  arrest  of  judgment,  because  the  latter  admits  the 
existence  of  a  legal  verdict,  which  the  former  assails,  but  if  both 
motions  are  made  simultaneously  they  will  be  treated  as  if  made 
in  due  order.2  Doubtless  this  was  formerly  true,  but  it  seems 
to  be  a  matter  so  technical  that  it  is  doubtful  whether  such  a 

1.  Section  3392   of  the  Code   is  as   follows:    "In   any  civil   case   or 
proceeding,    the    court    before    which    a    trial    by    jury    is    had,    may 
grant    a    new    trial,    unless    it    be    otherwise    specially    provided.      A 
new  trial  may  be  granted  as  well  where  the   damages   awarded  are 
too   small    as   where   they   are    excessive.      Not   more   than   two    new 
trials  shall  be  granted  to  the  same  party  in  the  same  cause." 

2.  Sweeney  v.  Baker,  13  W.  Va.  158,  216,  217;  2  Encl.  PI.  &  Pr.  818. 


§    303  MOTION    FOR  A    NEW   TRIAL  559 

ruling  would  now  be  permitted  to  cause  a  failure  of  justice.  The 
motion  for  a  new  trial  should  be  made  before  judgment  is  en- 
tered on  the  verdict,  but,  as  the  record  is  in  the  breast  of  the 
court  until  the  end  of  the  term,  it  may  be  made  at  any  time 
during  the  term,  even  after  judgment  has  been  entered.3  But  it 
would  require  a  very  clear  case  to  justify  the  court  in  setting 
aside  the  judgment  and  awarding  a  new  trial.  After  the  term 
is  ended  at  which  judgment  is  entered,  the  case  is  off  the  docket 
and  it  is  too  late  to  ask  for  a  new  trial.  Motions  for  new  trials 
are  addressed  to  the  sound  discretion  of  the  trial  court,  subject 
to  review  for  error,  and  are  based  upon  the  ground  that  justice 
has  not  been  done.  The  most  usual  grounds  for  new  trial  are 
those  stated  below : 

1.  Error  or  Misconduct  of  the  Judge. — The  most  common 
error  of  the  judge  which  is  made  the  basis  of  a  motion  for  a 
new  trial  is  that  committed  in  granting  or  refusing  instructions 
to  the  jury,  or  in  admitting  or  rejecting  evidence.  When  the 
motion  is  made  on  these  grounds  it  is  said  to  be  a  motion  to  set 
aside  the  verdict  because  contrary  to  law.  It  has  been  pointed 
out4  that  objection  should  be  made  to  instructions  at  the  time  of 
the  ruling  of  the  court  thereon,  and  generally  comes  too  late 
afterwards,  but  if  a  motion  for  a  new  trial  is  made  on  the 
ground  that  the  jury  was  improperly  instructed,  and  the  motion 
is  overruled,  it  is  subject  to  review  in  the  appellate  court,1  if  the 
instructions  are  set  forth  in  the  bill  of  exception.5  It  is  entirely 
competent  for  the  court,  of  its  own  motion,  in  a  proper  case,  to 
set  aside  the  verdict  of  the  jury.6  Formerly  it  was  necessary 
in  Virginia  for  the  record  to  show  that  a  motion  for  a  new  trial 
was  made,  and  overruled,  in  order  to  warrant  a  review  in  the 
appellate  court  of  any  ruling  of  the  trial  court  on  any  other 
question,  but  this  has  been  changed  by  statute  in  Virginia.7  But 
this  rule  is  still  in  effect  in  West  Virginia,8  Arkansas,9  and 

3.  4    Min.    Ins.    756. 

4.  Ante,  §  287. 

5.  Stevenson  v.  Wallace.  27  Gratt.  77;   Bull  v.  Com.,  14  Gratt.  613. 

6.  Ivanhoe  Furnace  Corp.  r.  Crowder,  110  Va.  387,  66  S.  E.  63. 

7.  Code,  §  3385a. 

8.  Dauks  v.  Rodeheaver,  26  W.  Va.  279. 

9.  Young  v.  King,  33  Ark.  745. 


560  MOTIONS  AFTER  VERDICT  §    30J 

other  states.  The  reason  assigned  was  that  the  judge  might, 
upon  a  deliberate  motion  for  a  new  trial,  supported  by  argument 
and  authority,  retract  a  hasty  opinion  expressed  by  him  in  the 
progress  of  the  trial.  A  new  trial  will  not  be  granted  simply 
because  erroneous  instructions  were  given,  if  the  court  can  set 
that  no  other  verdict  could  properly  have  been  rendered  under 
correct  instructions.  Such  is  the  law  in  Virginia,  West  Virginia, 
and  a  number  of  other  states,  but  probably  the  weight  of  author- 
ity is  contra.10  Moreover,  if  a  verdict  accords  with  instructions 
which  were  not  objected  to,  the  appellate  court  will  not  inquire 
whether  the  instructions  were  correct  or  not.10a 

Misconduct  of  Judge. — Anything  that  has  been  said  or  done 
by  the  trial  judge  that  is  substantially  prejudicial  to  a  party,  and 
may  have  improperly  influenced  the  jury  in  arriving  at  their 
verdict,  is  proper  ground  for  a  motion  for  a  new  trial.  Ex- 
pressions of  opinion  as  to  the  weight  of  the  evidence,  compell- 
ing a  jury  to  find  a  verdict  in  consequence  of  threats,  or  the 
like,  and  improper  refusal  to  change  the  venue,  are  all  grounds 
for  a  new  trial.11 

2.  Error  or  Misconduct  of  the  Jury. — Under  this  head  come 
verdicts  for  damages  too  large  or  too  small.  This  subject  has 
been  already  discussed,  and  the  discussion  need  not  be  .here  re- 
peated,.12 The  same  may  be  said  of  chance  verdicts.1-"  Mis- 
conduct of  jurors  covers  all  acts  on  their  part  prejudicial  to  the 
party  making  the  objection.  Any  communication  between  the 
jury  and  a  party  litigant  touching  the  subject  matter  of  the  lit- 
igation, and  tending  to  affect  the  result  will  be  ground  for  a  new 
trial,14  but  if  known,  it  should  be  called  to  the  attention  of  the 
court  before  verdict,  else  it  will,  as  a  rule,  be  deemed  to  have 
been  waived.  Accepting  bribes  is,  of  course,  ground  for  a 

10.  Ante,  §  300,  p.  540;   Richmond  &  D.   R.   Co.  v.   Medley,  75  Va. 
503;  Leftwich  v.  Wells,  101  Va.  255,  43  S.  E.  364;  So.  R.  Co.  v.  Oli- 
ver, 102  Va.  710,  47  S.  E.  862;  Watts  v.  N.  &  W.  R.  Co.,  39  W.  Va. 
196,  19  S.   E.  521. 

lOa.  Collins  v.   George,  102  Va.   509,  46  S.   E.   684. 

11.  Bunting  v.   Danville,  93  Va.  200,  24  S.   E.   830;   Jones  v.  Com., 
Ill   Va.  862,  69  S.   E.  953. 

12.  Ante,  §  300,  p.  541. 

13.  Ante,  §  300,  p.  540. 

14.  Jones  v.  Martinsville,  111  Va.  103,  68  S.  E.  265. 


§    303  MOTION  FOR  A  NEW  TRIAL  561 

new  trial,  and  so  is  any  other  misconduct  that  is  substantially 
prejudicial  to  a  party  litigant.  In  criminal  cases,  the  separation 
of  the  jury,  when  required  to  be  kept  together,  is  at  least  prima 
•facie  prejudicial. 

Impeachment  of  Verdict  by  Jurors. — The  tendency  of  the 
courts,  and  especially  in  Virginia,  is  to  hold  that,  as  a  rule,  ju- 
rors should  not  be  permitted  to  testify  to  their  own  misconduct 
in  the  jury  room.15  But  there  are  many  cases  in  which  the  mis- 
conduct of  jurors  could  not  be  made  the  subject  of  a  motion  for 
a  new  trial  at  all  if  the  jurors  were  not  permitted  to  testify  as 
to  their  misconduct.  Such,  for  instance,  is  the  case  where  they 
have  cast  lots  for  their  verdict,  where  they  have  been  improperly 
influenced  by  papers  or  other  documents  put  into  their  posses- 
sion, or  by  the  presence  of  third  parties  in  the  jury  room  during 
their  deliberations.  The  law  upon  this  subject  is  well  stated  by 
Chief  Justice  Fuller  as  follows:  "In  United  States  v.  Reid,  12 
How.  361,  366,  affidavits  of  two  jurors  were  offered  in  evidence 
to  establish  the  reading  of  a  newspaper  report  of  the  evidence 
which  had  been  given  in  the  case  under  trial,  but  both  deposed 
that  it  had  no  influence  on  their  verdict.  Mr.  Chief  Justice 
Taney,  delivering  the  opinion  of  the  court,  said:  'The  first 
branch  of  the  second  point,  presents  the  question  whether  the 
affidavits  of  jurors  impeaching  their  verdicts  ought  to  be  received. 
It  would,  perhaps,  hardly  be  safe  to  lay  down  any  general  rule 
upon  this  subject.  Unquestionably,  such  evidence  ought  always 
to  be  received  with  great  caution.  But  cases  might  arise  in  which 
it  would  be  impossible  to  refuse  them  without  violating  the  plain- 
est principles  of  justice.  It  is,  however,  unnecessary  to  lay  down 
any  rule  in  this  case,  or  examine  the  decisions  referred  to  in  the 
argument,  because  we  are  of  opinion  that  the  facts  proved  by  the 
jurors,  if  proved  by  unquestioned  testimony,  would  be  no  ground 
for  a  new  trial.  There  was  nothing  in  the  newspapers  calculated 
to  influence  their  decision,  and  both  of  them  swear  that  these 
papers  had  not  the  slightest  influence  on  their  verdict.'  The  opin- 
ion thus  indicates  that  public  policy  which  forbids  the  reception 

15.  Wash.  Park  Co.  r.  Goodrich,  110  Va.  692,  66  S.  E.  977;   Read's 
Case,  22   Gratt.  924. 
—36 


562  MOTIONS   AFTER   VERDICT  §    303 

of  the  affidavits,  depositions  or  sworn  statements  of  jurors  to  im- 
peach their  verdicts,  may  in  the  interest  of  justice  create  an  ex- 
ception to  its  own  rule,  while,  at  the  same  time,  the  necessity  of 
great  caution  in  the  use  of  such  evidence  is  enforced. 

"There  is,  however,  a  recognized  distinction  between  what  may 
and  what  may  not  be  established  by  the  testimony  of  jurors  to 
set  aside  a  verdict. 

"This  distinction  is  thus  put  by  Mr.  Justice  Brewer,  speaking 
for  the  Supreme  Court  of  Kansas  in  Perry  v.  Bailey,  12  Kans. 
539,  545 :  'Public  policy  forbids  that  a  matter  resting  in  the 
personal  consciousness  of  one  juror  should  be  received  to  over- 
throw the  verdict,  because  being  personal  it  is  not  accessible  to 
other  testimony;  it  gives  to  the  secret  thought  of  one  the  power 
to  disturb  the  expressed  conclusions  of  twelve;  its  tendency  is 
to  produce  bad  faith  on  the  part  of  a  minority,  to  induce  an  ap- 
parent acquiescence  with  the  purpose  of  subsequent  dissent ;  to 
induce  tampering  with  individual  jurors  subsequent  to  the  ver- 
dict. But  as  to  overt  acts,  they  are  accessible  to  the  knowledge 
of  all  the  jurors ;  if  one  affirms  misconduct,  the  remaining  eleven 
can  deny ;  one  cannot  disturb  the  action  of  the  twelve ;  it  is  use- 
less to  tamper  with  one,  for  the  eleven  may  be  heard.  Under 
this  view  of  the  law  the  affidavits  were  properly  received.  They 
tended  to  prove  something  which  did  not  essentially  inhere  in 
the  verdict,  an  overt  act,  open  to  the  knowledge  of  all  the  jury, 
and  not  alone  within  the  personal  consciousness  of  one.' 

"The  subject  was  much  considered  by  Mr.  Justice  Gray,  then 
a  member  of  the  Supreme  Judicial  Court  of  Massachusetts,  in 
Woodward  v.  Leavitt,  107  Mass.  453,  where  numerous  author- 
ities were  referred  to  and  applied,  and  the  conclusions  an- 
nounced, 'that  on  a  motion  for  a  new  trial  on  the  ground  of  bias 
on  the  part  of  one  of  the  jurors,  the  evidence  of  jurors  as  to  the 
motives  and  influences  which  affected  their  deliberations,  is  in- 
admissible either  to  impeach  or  to  support  the  verdict.  But  a 
juryman  may  testify  to  any  facts  bearing  upon  the  question  of 
the  existence  of  any  extraneous  influence,  although  not  as  to 
how  far  that  influence  operated  upon  his  mind.  So  a  juryman 
may  testify  in  denial  or  explanation  of  acts  or  declarations  out- 
side of  the  jury  room,  where  evidence  of  such  acts  has  been 


§    303  MOTION  FOR  A  NEW  TRIAL  563 

given  as  ground  for  a  new  trial.'  See,  also,  Ritchie  v.  Holbrook, 
7  S.  &  R.  458;  Chews  v.  Driver,  1  Coxe  (N.  J.),  166;  Nelms  v. 
Mississippi,  13  Sm.  &  Marsh.  500;  Hawkins  v.  New  Orleans 
Printing  Co.,  29  La.  Ann.  134,  140;  Whitney  v.  Whitman,  5 
Mass.  405 ;  Hix  v.  Drury,  5  Pick.  296. 

"We  regard  the  rule  thus  laid  down  as  conformable  to  right 
reason,  and  sustained  by  the  weight  of  authority.  These  affi- 
davits were  within  the  rule,  and  being  material  their  exclusion 
constitutes  reversible  error.  A  brief  examination  will  demon- 
strate their  materiality."16 

Wherever,  therefore,  the  alleged  misconduct  is  evidenced  by 
overt  acts  open  to  the  knowledge  of  all  or  any  number  of  the 
jurors,  the  affidavits  of  the  jurors  should  be  received. 

3.  Misconduct  of  Counsel. — As    hereinbefore  pointed  out,17 
appeals  to  the  passions   and   prejudices   of  a  jury,  references  to 
matters  not  given  in  evidence,  aspersions  of  a  witness  not  war- 
ranted by  what  has  transpired  in  the  case,  are  all,  if  persisted 
in,  improper  conduct  of  counsel,  for  which  a  new  trial  may  be 
granted.     Many  other  specific  acts  of  misconduct  on  the  part  of 
counsel,  which  will  entitle  the  party  aggrieved  to  a  new  trial,  are 
set  forth  in  the  references  given  in  the  margin.18 

4.  Misconduct  of  Parties. — Any  tampering  with  the  jury  by  a 
party  to  the  litigation  is  such  misconduct  as    will    warrant   the 
court  in  setting  aside  the  verdict.     Indeed,  the  verdict  may  be  set 
aside  for  misconduct  of  a  party  even  when  such  misconduct  oc- 
curs after  the  verdict  has  been  rendered.     Where  it  appears  that 
a  defendant  in  an  action  at  law,  immediately  after  a  verdict  in  his 
favor,  stated  that  he  had  never  lost  a  case  and  never  expected  to 
if  it  was  left  to  a  jury,  and  gave  five  dollars  to  each  of  the  jurors, 
and  both  he  and  they  were  fined  for  contempt,  and  he  thereupon 
paid  the  fine  assessed  upon  several  of  the  jurors,  and  it  also  ap- 
pears that  he  attempted  to  bribe  an  important  witness  for  the 
plaintiff,  the  trial  court  should  set  aside  the  verdict  rendered  in 

16.  Mattox  T'.  U.  S.,  146  U.   S.  140,  149. 

17.  Ante,  §   296. 

18.  Note,  9  Am.  St.  Rep.  559,  ff;  Note  100  Am.  St.  Rep.  690,  ff. 


564  MOTIONS   AFTER   VERDICT  §    303 

his  fayor,  notwithstanding  both  defendant  and  jurors  had  been 
punished  for  their  contempt.19 

5.  Misconduct  of  Third  Persons. — Wherever  the  conduct  of 
outsiders  is  such  as  to  have  unduly  influenced  the  verdict  and  to 
have  prevented  a  fair  trial  on  the  merits,  it  is  the  duty  of  the 
trial  court  to  set  the  verdict  aside.     This  is  true  in  civil  cases  as 
well  as  criminal.   In  a  criminal  case  the  verdict  was  set  aside  on 
account  of  an  unwarranted  interruption  of  the  argument  of  coun- 
sel for  the  prisoner  before  the  jury.     The  prisoner  was  on  trial 
for  murder,  and,  while  his  counsel  was  addressing  the  jury,  about 
one  hundred  people,  being  one  fourth  of  those  in  the  court-house, 
simultaneously  and   as   if   by  agreement,   left  the   room.     Soon 
thereafter  a  fire  alarm  was  given  near    the    court-house    which 
caused  a  number  of  others  to  leave.     These  demonstrations  were 
for  the  purpose  of  breaking  the  force  of  counsel's  argument,  but 
the  trial  court  was  of  the  opinion  that  the  jury  was  not  influenced 
thereby.     No  exception  was  taken  to  this  misconduct  at  the  time, 
because  counsel    for   the   prisoner   was   of    opinion    (as    stated 
in  the  petition  for  the  writ  of  error)  that  if  the  verdict  had  been 
set  aside  the  prisoner  would  have  met  violent  death  at  once.     It 
was  held  that  the  disorderly  proceedings  were  such  as  to  war- 
rant the  court  in  declaring  that  the  trial  was  not  conducted  ac- 
cording to  the  law  of  the  land  as  guaranteed  by  the  constitution, 
and  that  no  person  ought  to  be  deprived  of  his  life  or  liberty  ex- 
cept by  the  law  of  the  land,  and  hence  the  verdict  was  set  aside 
and  a  new  trial  awarded.20 

6.  After-Discovered    Evidence. — After-discovered    evidence 
means  evidence  discovered  after  the  verdict  has  been  rendered. 
Evidence  discovered  pending  the  trial,  even  towards  its  close  can- 
not be  said  to  be  after-discovered,  and  if  no  motion  is  made  to 
postpone  the  case  until  the  evidence  can  be  obtained,  and  the  at- 
tention of  the  court  is  in  no  wise  drawn  to  it  until  after  verdict, 
it  is  not  ground  for  a  new  trial.21     Ignorance  of  the  location  of 

19.  Merritt  v.  Bunting,  107  Va.  174,  57  S.  E.  567. 

20.  State  v.  Wilcox   (Nell  Cropsey  Case),  131   N.   C.   707,  42   S.   E. 
356.     See,  also,  Doyle  v.  Commonwealth,  100  Va.  808,  40  S.  E.  925. 

21.  Norfolk  v.  Johnakin,  94   Va.   285,  26   S.   E.   830. 


§    303  MOTION  FOR  A  NEW  TRIAL,  565 

witnesses  whose  testimony  is  known  to  be  material  may  be  good 
ground  for  a  postponement  or  continuance  of  the  case,  but  the 
subsequent  discovery  of  the  whereabouts  of  witnesses  known 
to  be  material  is  not  such  after-discovered  evidence  as  will 
entitle  a  party  to  a  new  trial  on  that  ground.22  Applications  for 
new  trials  are  addressed  to  the  sound  discretion  of  the  court,  and 
are  based  on  the  ground  that  there  has  not  been  a  fair  trial  on 
the  merits.  In  order  to  justify  a  new  trial  for  after-discovered 
evidence,  (a)  the  evidence  must  have  been  discovered  since  the 
trial,  (b)  it  must  be  material  in  its  object  and  such  as  on  another 
trial  ought  to  produce  opposite  results  on  the  merits,  (c)  it  must 
not  be  merely  cumulative,  corroborative,  or  collateral,  and  (d) 
it  must  be  evidence  that  could  not  have  been  discovered  before 
the  trial  by  the  use  of  due  diligence.23  This  is  undoubtedly  the 
general  rule,  but  exceptional  cases  may  arise  when  the  courts  will 
find  it  necessary  to  depart  from  it.  In  one  case,  at  least,  the 
Court  of  Appeals  of  Virginia  found  it  necessary  to  depart  from 
this  general  rule.  It  was  a  criminal  prosecution,  and  the  court 
Avas  of  opinion  that  the  testimony  of  a  very  intelligent,  disinter- 
ested witness  discovered  after  the  trial,  indicated  a  purpose  on 
the  part  of  detectives  engaged  in  getting  up  evidence  in  the  case 
to  compass  the  conviction  of  the  accused  upon  fabricated  evi- 
dence, and  hence  awarded  a  new  trial.24  Evidence  newly  dis- 
covered is  said  to  be  cumulative  in  its  relation  to  the  evidence  on 
trial  when  it  is  of  the  same  kind  and  character.  If  it  is  dissimi- 
lar in  kind,  it  is  not  cumulative  in  a  legal  sense,  though  it  tends  to 
prove  the  same  proposition.25  If  a  fact  is  attempted  to  be  proved 
by  verbal  admissions  of  a  party  evidence  of  another  verbal  ad- 
mission of  the  same  fact  is  cumulative,  but  evidence  of  other 
facts  tending  to  establish  the  fact  is  not.26 

7.  Verdict  Contrary  to  the  Evidence. — In  England,  a  motion 
for  a  new  trial  on  the  ground  that  the  verdict  is  contrary  to  the 
evidence  may  be  made  before  the  trial  judge,  but  if  overruled  is 

22.  Adamson  v.  Norfolk  Co.,  Ill  Va.  556,  69  S.  E.  1055. 

23.  Nicholas  v.  Com.,  91  Va.  741,  21  S.   E.  364. 

24.  Johnson  v.   Com.,   104  Va.   881,   52   S.   E.   625. 

25.  Wynne  v.  Newman,  75   Va.   811. 

26.  1  Gr.   Ev.   (16  Ed.),  §  2. 


566  MOTIONS   AFTER   VERDICT  §    303 

not  the  subject  of  a  writ  of  error.  It  is  said:  "Where  an  issue 
in  fact  has  been  decided  there  is  (as  formerly  observed)  no  ap- 
peal in  the  English  law  from  its  decision,  except  in  the  way  of  a 
motion  for  a  new  trial;  and  its  being  wrongly  decided  is  not 
error  in  that  technical  sense  to  which  a  writ  of  error  refers."27 
In  other  words,  a  motion  for  a  new  trial  on  this  ground  may  be 
made  in  the  trial  court,  but  if  it  is  overruled,  that  is  the  end  of 
it.  No  writ  of  error  lies  in  such  case.  The  same  rule  prevails 
in  the  United  States  courts.  It  is  said:  "It  has  long  been  the 
established  law  in  the  courts  of  the  United  States  that  to  grant 
or  refuse  a  new  trial  rests  in  the  sound  discretion  of  the  court, 
to  which  the  motion  is  addressed,  and  that  the  result  cannot  be 
made  the  subject  of  review  upon  a  writ  of  error."28  In  the  case 
last  cited  in  the  margin  a  motion  was  made  to  set  aside  the  ver- 
dict on  account  of  misconduct  of  the  jurors,  and  the  affidavits  of 
the  jurors  were  offered  in  evidence  to  show  that  certain  news- 
papers were  read  by  the  jury  and  influenced  their  verdict.  The 
trial  court  refused  to  receive  the  affidavits.  The  Chief  Justice, 
after  referring  to  the  fact  that  the  allowance  or  refusal  of  a 
new  trial  rests  in  the  sound  discretion  of  the  court,  to  which  the 
application  is  addressed,  and  is  not  the  subject  of  review  by  a 
writ  of  error,  says:  "B"t  in  the  case  at  bar,  the  District  Court 
excluded  the  affidavits,  and,  in  passing  upon  the  motion,  did  not 
exercise  any  discretion  in  respect  to  the  matter  stated  therein. 
Due  exception  was  taken  to  the  question  of  admissibility  thereby 
presented."  For  this  refusal  of  the  trial  court  to  exercise  its 
discretion  the  case  was  heard  on  a  writ  of  error  in  the  Supreme 
Court,  the  affidavits  were  allowed  to  be  read,  and  the  case  was 
reversed  and  remanded.  In  Virginia  it  is  provided  by  statute 
that  such  a  motion  may  not  only  be  made  in  the  trial  court,  but, 
if  overruled  and  a  bill  of  exception  taken,  the  action  of  the  trial 
court  may  be  reviewed  on  a  writ  of  error,  but  that  the  case  goes 
up  as  upon  a  demurrer  to  the  evidence  by  the  plaintiff  in  error.29 

27.  Stephen's  Pleading,  p.  247. 

28.  Newcomb  v.  Wood,  97  U.  S.  581;   Ins.  Co.  v.  Barton,  13  Wall. 
603;  Maddox  v.  U.  S.,  146  U.  S.  140. 

29.  Section  3484  of  the  Code  is  as  follows:    "When  a  case  at  law, 
civil  or  criminal,  is  tried  by  a  jury  and  a  party  excepts  to  the  judg- 


§    303  MOTION  FOR  A  NEW  TRIAL  567 

A  verdict  should  not  be  set  aside  as  contrary  to  the  evidence  un- 
less it  is  plainly  so,  or  is  without  evidence  to  support  it,  hence  if 
the  evidence  is  conflicting  the  trial  court  has  no  power  to  set 
aside  the  verdict.  It  is  said  that  where  a  case  has  been  prop- 
erly submitted  to  a  jury  and  a  verdict  fairly  rendered,  it  ought 
not  to  be  set  aside  unless  manifest  injustice  has  been  done,  or 
the  verdict  is  plainly  not  warranted  by  the  evidence.  The  fact 
that  the  verdict  is  contrary  to  the  preponderance  of  the  evidence, 
or  that  the  judge,  had  he  been  on  the  jury,  would  have  rendered 
a  different  verdict,  will  not  change  the  result.30  When  it  is  said 
in  the  statute  cited  in  the  margin  that  the  case  is  to  be  heard  as 
on  a  demurrer  to  the  evidence  by  the  plaintiff  in  error  that  simply 
means  that  it  is  subject  to  the  same  concessions  by  the  plaintiff 
in  error  as  are  required  by  a  demurrant  in  case  of  a  demurrer  to 
the  evidence.  If  the  appellate  court  is  of  opinion  that  the  verdict 
should  be  set  aside  it  will  set  it  aside  and  remand  the  case  for  a 
new  trial.  It  will  not  enter  up  final  judgment  in  the  appellate 
court  as  is  done  in  a  case  which  goes  up  on  a  demurrer  to  the 
evidence.  It  must  be  understood,  however,  that  the  statement  that 
the  case  goes  up  as  on  a  demurrer  to  the  evidence  is  applicable 
only  when  the  evidence  is  certified  and  not  the  facts.31 

ment  or  action  of  the  court  in  granting  or  refusing  to  grant  a  new 
trial  on  a  motion  to  set  aside  the  verdict  of  a  jury  on  the  ground 
that  it  is  contrary  to  the  evidence,  or  when  a  case  at  law  is  decided 
by  a  court  or  judge  without  the  intervention  of  a  jury  and  a  party 
excepts  to  the  decision  on  the  ground  that  it  is  contrary  to  the  evi- 
dence, and  the  evidence  (not  the  facts)  is  certified,  the  rule  of  de- 
cision in  the  appellate  court  in  considering  the  evidence  in  the  case 
shall  be  as  on  a  demurrer  to  the  evidence  by  the  appellant,  except 
that  when  there  have  been  two  trials  in  the  lower  court,  in  which 
case  the  rule  of  decision  shall  be  for  the  appellate  court  to  look 
first  to  the  evidence  and  proceedings  on  the  first  trial,  and  if  it 
discovers  that  the  court  erred  in  setting  aside  the  verdict  on  that 
trial  it  shall  set  aside  and  annul  all  proceedings  subsequent  to  said 
verdict  and  enter  judgment  thereon." 

The   latter   part    of    this    section    is    discussed    in    the    chapter    on 
Writs  of  Error,  post. 

30.  Jackson  v.  Wickham,  112  Va.  128,  70  S.  E.  539. 

31.  The  same  rules  with  reference  to  new  trials  above  stated  do  not 
apply  to  issues  out  of  chancery.     A  court  of  equity  may,  in  a  proper 
case,  order  an  issue  to  be  tried  by  a  jury,  and,  except  where  directed 


568  MOTIONS   AFTER   VERDICT  §    303 

The  West  Virginia  statute  corresponding  to  the  Virginia  stat- 
ute requires  the  trial  court  to  certify  all  the  evidence  touching 
the  question,  and  declares  that  when  the  bill  of  exception  is 
signed  it  shall  be  made  a  part  of  the  record  in  the  case,  and  the 
whole  of  the  evidence  so  certified  shall  be  considered  by  the 
Court  of  Appeals,  both  upon  the  application  for  and  hearing  of 
the  writ  of  error  or  supersedeas.32  It  has  been  held  by  the  West 
Virginia  court  that  "on  consideration  of  the  whole  evidence,  as 
required  by  legislative  enactment,  if  it  appears  that  the  verdict 
of  the  jury  is  sustained  by  a  decided  preponderance  thereof,  the 
court  will  not  set  aside  such  verdict  because  the  trial  court  may 
have  given  improper  or  refused  proper  instructions,  not  interfer- 
ing with  or  affecting  the  preponderance  of  evidence,  for  such  er- 
roneous rulings  must  be  deemed  to  be  harmless  error."33 

8.  Accident  and  Surprise. — It  is  said  that  the  essential  facts 
necessary  to  warrant  a  new  trial  for  accident  and  surprise  are 
(a)  that  the  surprise  could  not  have  been  guarded  against  by  or- 
dinary prudence;  (b)  that  it  was  not  due  to  ignorance  of  law; 

(c)  that  there  will  probably  be  a  different  result  on  a  new  trial; 

(d)  that  the  applicant  made  prompt  complaint  of  the  surprise, 
and  (e)  that  the  misfortune  could  not  have  been  averted  by  the 
introduction  of  other  available  testimony,  by  a  continuance,  or 
by    a   dismissal   without  prejudice.     All  of  these   requirements 
must  be  complied  with,  or  the  application  will  be  denied,  as  it  is 
looked  upon  with  suspicion.34 

by  statute,  such  an  issue  is  a  mere  incident  to  the  suit  in  chancery. 
It  is  directed  merely  to  satisfy  the  conscience  of  the  chancellor, 
and  if  he  is  not  satisfied  with  the  verdict,  he  may  set  it  aside,  and 
award  a  new  trial  of  the  issue,  or  he  may  disregard  it  altogether, 
and  proceed  to  decide  the  case  without  the  intervention  of  another 
jury.  But  this  discretion  of  the  chancellor  is  a  sound,  judicial 
discretion,  subject  to  review  for  error.  Where  the  evidence  relat- 
ing to  a  particular  fact  in  dispute  is  contradictory  and  evenly  bal- 
anced, it  is  the  peculiar  province  of  a  jury  to  weigh  the  evidence 
and  decide  the  issue,  and  it  is  error  for  the  chancellor  to  set  aside 
the  verdict.  Miller  v.  Wills,  95  Va.  337,  28  S.  E.  337. 

32.  W.  Va.  Code,  §  3979. 

33.  Bank  of  Huntington  v.  Napier,  41  W.  Va.  481.  23  S.  E.  800. 

34.  14   Encl.   PI.   &  Pr.   722,  et  seq. 


§    304  NUMBER  OF  NEW  TRIALS — CONDITIONS  569 

9.  Damages  Excessive  or  Too  Small. — This  subject  has  been 
already  treated  in  discussing  misconduct  of  the  jury.35 

§    304.    Number  of  new  trials — Conditions. 

Both  in  Virginia  and  West  Virginia  it  is  declared  by  statute 
that  not  more  than  two  new  trials  shall  be  granted  to  the  same 
party  in  the  same  case.36  Under  this  statute  not  more  than  two 
new  trials  can  be  granted  to  the  same  party  by  the  court  in  any 
civil  suit  before  it,  tried  by  jury,  although  one  or  all  of  the  ver- 
dicts necessitating  new  trials  were  caused  by  the  mistakes  or 
misdirection  of  the  court.37 

There  are  no  exceptions  to  the  law  that  not  more  than  two  new 
trials  shall  be  granted  to  the  same  party  in  the  same  case.  But 
if,  on  the  face  of  the  record,  it  appears  that  a  verdict  is  void,  and 
that  at  common  law  no  judgment  could  be  properly  entered  upon 
it,  as,  for  instance,  because  it  was  too  uncertain,  ambiguous  or 
defective,  the  court  may  declare  such  a  verdict  void,  and  direct 
a  new  trial  without  regard  to  the  number  of  new  trials  which  may 
have  been  granted  the  same  party  in  the  case.38 

The  terms  upon  which  new  trials  are  awarded  in  Virginia  and 
\Yest  Virginia  are  set  forth  in  the  margin.39  It  will  be  observed 

35.  Ante,  §  300.     See,  also,  N.  &  W.  R.  Co.  v.  Neeley,  91  Va.  539, 
22  S.  E.  367;  Shearer  v.  Taylor,  106  Va.  26,  55  S.  E.  7;  So.  R.  Co.  v. 
Clarke,  106  Va.  496,  56  S.  E.  274;  N.   &  W.   R.  Co.  v.  Carr,  106  Va. 
508.  56  S.   E.  276. 

36.  Va.  Code,  §  3392;  W.  Va.  Code,  §  3985. 

37.  Watterson   v.   Moore,   23   W.   Va.   404. 

38.  Williams  v.  Ewart,  29  W.  Va.  659,  2  S.  E.  881. 

39.  Section  3542  of  the  Va.  Code  is  as  follows: 

"The  party  to  whom  a  new  trial  is  granted,  shall,  previous  to  such 
new  trial,  pay  the  costs  of  the  former  trial,  unless  the  court  enter 
that  the  new  trial  is  granted  for  misconduct  of  the  opposite  party, 
•  who,  in  such  case,  may  be  ordered  to  pay  any  costs  which  seem 
to  the  court  reasonable.  If  the  party,  who  is  to  pay  the  costs  of  the 
former  trial,  fail  to  pay  the  same  at  or  before  the  next  term  after 
the  new  trial  is  granted,  the  court  may,  on  the  motion  of  the 
opposite  party,  set  aside  the  order  granting  it,  and  proceed  to 
judgment  on  the  verdict,  or  award  execution  for  said  costs,  as  may 
seem  to  it  best." 

Section  4128  of  the  W.  Va.  Code  is  as  follows: 

"New  trials  may  be   granted  upon   the  payment   of  costs,  or  with 


570  MOTIONS   AFTER   VERDICT  §    304 

that  the  party  to  whom  the  .new  trial  is  awarded  is  required  to 
pay  the  costs  of  the  former  trial.  If  the  costs  are  not  paid  at 
or  before  the  next  term,  the  court  may  set  aside  the  order  grant- 
ing the  new  trial  or  award  an  execution  for  costs,  but  if  neither 
is  done  and  the  parties  proceed  with  the  new  trial,  objection  can- 
not thereafter  be  made,  either  in  the  trial  court  or  in  the  appel- 
late court,  that  the  costs  have  not  been  paid.40  Where  the  costs 
have  not  been  paid  at  or  before  the  next  term  of  the  court,  and, 
at  a  subsequent  term,  the  plaintiff,  against  whom  the  new  trial 
had  been  granted,  moves  the  court  to  set  aside  the  order  grant- 
ing it  because  the  defendant  has  not  paid  the  costs  as  required, 
the  defendant  may  then  tender  the  costs  of  the  former  trial,  and 
it  is  error  to  rescind  the  order  for  the  new  trial.  It  is  sufficient 
if  the  costs  are  paid  or  tendered  at  any  time  before  the  order 
granting  the  new  trial  has  been  actually  set  aside.41  After  the 
second  trial,  the  party  deprived  of  his  verdict  cannot  for  the  first 
time  object  that  the  order  granting  the  new  trial  did  not  require 
as  a  condition  precedent  the  payment  of  the  costs  of  the  former 
trial.  This  is  especially  true  where  no  motion  was  made  to  set 
aside  the  order  granting  the  new  trial,  nor  for  an  execution  for 
the  costs  of  the  former  trial.42  The  provision  of  the  Virginia 
Code  requiring  a  party  to  whom  a  new  trial  is  granted  to  pay 
the  cost  of  the  first  trial,  before  the  second  is  had,  applies  only  to 
costs  in  the  trial  court,  and  not  to  costs  in  the  Court  of  Appeals 
incurred  upon  writ  of  error.  Moreover,  this  burden  is  only  im- 
posed upon  the  party  to  whom  the  new  trial  is  granted,  and  not 
upon  one  who  is  forced  to  submit  to  a  new  trial,  because  a  ver- 

the  costs  to  abide  the  event  of  the  suit,  as  to  the  court  may  seem 
right.  If  the  party  who  is  to  pay  the  costs  of  the  former  trial, 
fail  to  pay  the  same  at  or  before  the  next  term  after  the  new  trial 
is  granted,  the  court  may,  on  the  motion  of  the  opposite  party,  set 
aside  the  order  granting  it,  and  proceed  to  judgment  on  the  verdict 
or  award  execution  for  said  costs,  as  may  seem  to  it  best.  Where 
a  case  is  continued  at  the  costs  of  a  party  against  the  consent 
of  the  opposite  party,  the  court  may,  in  its  discretion  award  an 
execution  for  the  costs  of  such  continuance." 

40.  Central  Land  Co.  v.  Obenchain,  92  Va.  130,  22  S.  E.  876. 

41.  Haupt  v.  Teabault,  94  Va.  184,  26  S.  E.  406. 

42.  Hudgins  v.   Simon,  94  Va.   659,  27   S.   E.   606. 


§    305  ARREST    OF    JUDGMENT  571 

diet  in  his  favor  has  been  set  aside  on  a  writ  of  error  at  the  in- 
stance of  his  adversary.43 

§    305.    Arrest  of  judgment. 

This  is  a  motion  made  verbally  in  the  trial  court  (after  the  ver- 
dict) for  the  purpose  of  arresting  or  preventing  the  entry  of  a 
judgment  on  the  verdict.  Manifestly  it  can  be  made  only  in  the 
trial  court.  It  lies  only  for  material  error  apparent  on  the  face 
of  the  record.  The  error  must  be  of  such  nature  as  would  war- 
rant a  reversal  on  a  writ  of  error  from  a  higher  court.  If  it  is 
of  this  nature  the  party  injured  may  move  in  arrest  of  judgment 
in  the  trial  court,  or  apply  to  a  higher  court  for  a  writ  of  error. 
Any  error  that  is  good  ground  for  a  motion  in  arrest  of  judgment 
is  good  ground  for  reversal  on  a  writ  of  error,  whether  a  motion 
in  arrest  of  judgment  was  made  in  the  trial  court  or  not.44  Most 
errors  of  a  mere  formal  nature,  and  some  of  substance,  are  cured 
by  the  statute  of  jeofails.45  It  is  error  to  unite  tort  and  con- 
tract in  different  counts  of  the  same  declaration,  and  if  a  de- 
murrer on  that  account  is  interposed  the  objection  is  good,  but 
if  no  demurrer  is  interposed  the  defect  is  cured  by  verdict,  and 
it  is  not  a  good  ground  for  a  motion  in  arrest  of  judgment,  or 
writ  of  error.46  As  stated,  a  motion  in  arrest  of  judgment  4ies 

43.  So.   R.  Co.  v.   Hansbrough,  107  Va.  733,  60  S.   E.  58. 

44.  Mathews  v.  Com.,  18  Gratt.  989. 

45.  Section  3449  of  the  Code  is  as  follows:    "No  judgment  or  decree 
shall    be    stayed    or    reversed    for^the    appearance    of    either    party, 
being    under    the    age    of    twenty-one    years,    by    attorney,    if    the 
verdict    (where    there    is    one),    or   the    judgment    or    decree,    be    for 
him  and  not  to  his  prejudice;   or  for  want  of  warrant  of  attorney; 
or    for    the    want    of    a    similiter,    or    any    misjoining    of    issue;    or 
for  any  informality  in  the  entry  of  the  judgment  or  decree  by  the 
clerk;    or   for    the    omission   of   the    name    of   any   juror;    or    because 
it    may    not    appear    that    the    verdict   was    rendered    by   the    number 
of    jurors    required    by    law;    or    for    any    defect,    imperfection,    or 
omission    in    the    pleadings,    which    could    not    be    regarded    on    de- 
murrer;   or   for  any   other   defect,    imperfection,    or    omission,    which 
might  have  been  taken  advantage  of  on  a  demurrer  or  answer,  but 
was  not  so  taken  advantage  of." 

46.  N.  &  W.  R.  Co.  v.  Wysor,  82  Va.  250.     The  very  terms  of  the 
statute  declare  that  the  judgment  shall  not  be  arrested  for  any  "defect, 


572  MOTIONS    AFTER   VERDICT  §    305 

only  for  error  apparent  on  the  face  of  the  record.  If  a  declara- 
tion against  master  and  servant  for  a  negligent  injury  charges 
negligence  on  the  part  of  both  defendants,  and  there  is  a  verdict 
against  the  master  only,  and  it  appears  solely  from  the  evidence 
certified  that  the  servant  alone  was  negligent,  this  is  not  error 
apparent  on  the  face  of  the  record,  and  hence  a  motion  in  arrest 
of  judgment  on  this  ground  should  be  overruled.47  When  it  is 
said  that  it  must  be  for  error  apparent  on  the  face  of  the  record, 
it  is  meant  that  which  is  per  se  a  part  of  the  record  and  not  in- 
troduced into  the  record  by  a  bill  of  exception.  This  motion 
does  not  lie  on  behalf  of\a  party  not  injured  by  the  alleged  error. 
For  instance,  the  fact  that  a  verdict  for  the  defendant  is  for  a 
less  amount  than  the  record  on  its  face  shows  the  defendant  is 
entitled  to  recover  is  no  ground  for  a  motion  in  arrest  of  judg- 
ment by  the  plaintiff,  as  he  is  not  injured  thereby.48 

When  the  motion  in  arrest  of  judgment  is  made,  and  the  court 
can  see  that  judgment  cannot  properly  be  entered  on  the  record 
as  it  stands,  but  that  the  record  can  be  corrected  and  justice  ad- 
ministered in  the  same  case,  it  will  not  content  itself  with  simply 
arresting  the  judgment,  but  will  go  further  and  make  the  needed 
correction,  and  allow  the  case  to  proceed  on  its  merits.  This  is 
well  pointed  out  by  Professor  Graves,  as  follows :  "For  in- 
stance, if  the  verdict  is  so  uncertain  that  the  court  cannot  enter 
proper  judgment  upon  it,  and  there  is  no  other  error,  then  the 
court  not  merely  withholds  judgment  upon  the  verdict,  but  sets 
it  aside,  and  awards  a  venire  facias  de  novo.  But  suppose  the 
error  is  not  in  the  verdict  but  m  the  pleadings,  a  material  error, 
not  cured  by  the  verdict,  or  by  the  statute  of  jeofails?  Then  the 
court  will  correct  the  error,  and  set  aside  the  subsequent  proceed- 
ings down  to  and  including  the  verdict,  and  order  new  proceed- 
ings in  the  cause,  to  begin  where  the  first  error  was  committed, 
awarding  a  repleader.  4  Min.  Inst.  1204.  But  suppose  the  er- 
ror is  fundamental,  incurable,  and  it  is  manifest  that  the  plain- 
imperfection,  or  omission,  which  might  have  been  taken  advantage  of 
on  a  demurrer,  or  answer,  hut  was  not  so  taken  advantage  of."  See 
ante,  §  92. 

47.  Ivanhoe  Furnace  Corp.  v.  Crowder,  110  Va.  387,  66  S.  E.  63. 

48.  Newport  News  Co.  v.  Bickford,  105  Va.  182,  52  S.  E..1011. 


§    306  JUDGMENT    NON    OBSTANTE   VER^DICTO  573 

tiff  cannot  possibly  succeed  in  the  action?  Then,  though  the 
plaintiff  won  the  verdict,  judgment  will  be  entered  for  the  de- 
fendant, and  there  will  be  no  venire  facias  de  novo  and  no  re- 
pleader,  for  it  would  be  useless.  In  such  a  case  the  judgment  is 
not  on  the  verdict  but  in  spite  of  it — non  obstante  veredicto. 
See  Ross  v.  Milne,  12  Leigh  277;  Davis  v.  Com.,  13  Gratt.  151; 
Ewing  v.  Ewing,  2  Leigh  343;  Matheson  v.  Grant,  2  Howard 
263. "49  As  to  the  procedure  where  entire  damages  are  found, 
when  there  are  one  or  more  defective  counts  in  the  declaration, 
see  ante,  §  301. 

§    306.    Judgment  non  obstante  veredicto. 

Where  the  pleadings  are  by  way  of  confession  and  avoidance, 
and  the  matter  set  up  in  avoidance  is  bad,  although  there  may  be 
a  verdict  for  the  defendant  in  accordance  with  his  plea,  the  plain- 
tiff is  nevertheless  entitled  to  a  judgment,  notwithstanding  the 
verdict.  The  plaintiff  in  effect  says:  "Upon  the  merits  as 
shown  by  the  pleadings  I  am  entitled  to  a  judgment  without  re- 
gard to  the  verdict.  The  verdict  may  be  true  and  correct,  but  it 
is  immaterial."  The  pleading  confesses  the  adverse  claim,  but 
makes  no  sufficient  avoidance,  hence  there  is  no  necessity  to  set 
the  verdict  aside,  and  judgment  is  entered  on  the  pleadings,  and 
hence  is  sometimes  called  a  judgment  as  upon  confession.  The 
plaintiff  was  entitled  to  judgment  before  there  was  any  verdict, 
as  he  might  have  demurred  to  the  plea  and  had  judgment  in  his 
favor  upon  the  demurrer,  and  the  verdict  on  an  immaterial  is- 
sue does  not  take  away  his  right  to  the  judgment  to  which  he  was 
entitled.  If  the  plea  was  itself  substantially  bad  in  law,  the  ver- 
dict which  merely  shows  it  to  be  true  in  point  of  fact  cannot 
avail  to  entitle  the  defendant  to  judgment.  It  is  said  that,  some- 
times it  may  be  expedient  for  the  plaintiff  to  move  for  a  judg- 
ment non  obstante,  even  though  the  verdict  be  in  his  own  favor, 
for  if  in  such  a  case  as  above  mentioned  he  takes  judgment  as 
upon  the  verdict,  the  judgment  would  be  erroneous,  and  hence 
the  only  satisfactory  course  is  to  take  it  as  upon  confession.5® 

It  seems  that  this  motion  can  be  made  in  England  only  by  the 

49.  Graves'  Pleading  (new),  p.  89. 

50.  Stephen's    PI..    §    127. 


574  MOTIONS  AFTER  VERDICT  §    307 

plaintiff,  but  there  is  no  good  reason  on  principle  why  it  may  not 
likewise  be  made  by  the  defendant  in  a  proper  case,  as,  for  in- 
stance, where  the  declaration  of  the  plaintiff  states  no  case,  and 
this  is  the  constant  practice  in  Virginia.51  If  the  plea  of  the  de- 
fendant is  by  way  of  a  traverse,  and  not  by  way  of  confession 
and  avoidance,  this  motion  does  not  lie.  For  instance,  in  an  ac- 
tion of  trespass  on  the  case  against  master  and  servant  where 
there  is  a  joint  plea  of  not  guilty,  and  there  is  a  verdict  against 
the  master  on  account  of  the  negligence  of  the  servant,  but  a 
judgment  in  favor  of  the  servant,  a  motion  for  a  judgment  non 
obstante  on  behalf  of  the  master  does  not  lie,  as  the  pleading 
was  by  way  of  traverse,  and  not  by  way  of  confession  and  avoid- 
ance, and,  furthermore  the  error  of  the  jury  in  finding  the  master 
guilty  in  consequence  of  the  negligence  of  the  servant,  and  yet 
finding  the  servant  not  guilty,  does  not  appear  upon  the  face  of 
the  record,  but  only  from  the  evidence,  which  is  no  part  of  the 
record.52  This  motion  lies  only  for  error  apparent  on  the  face 
of  the  record.53 

§    307.    Repleader. 

A  repleader  (pleading  anew),  when  awarded,  is  always  for 
some  error  apparent  on  the  face  of  the  pleadings,  which  are 
per  se  a  part  of  the  record.  A  motion  for  a  repleader  is  made 
when  the  unsuccessful  party,  plaintiff  or  defendant,  on  exami- 
nation of  the  pleadings,  conceives  that  the  issue  has  been  joined 
and  decided  on  an  immaterial  point,  not  proper  to  determine  the 
action.  Either  of  the  parties  may,  from  misapprehension  of  law 
or  oversight,  have  passed  over  without  demurrer  a  statement  on 
the  other  side  insufficient  and  immaterial  in  law,  and  an  issue  in 
fact  may  have  been  ultimately  joined  on  such  immaterial  state- 
ment and  the  controversy  made  to  turn  upon  the  immaterial 
issue.  For  example,  an  administrator,  sued  upon  a  promise  made 
by  his  decedent,  pleads  that  he  did  not  assume,  on  which  issue 
was  joined,  and  there  was  a  verdict  for  the  defendant.  Here  a 

51.  Boyles  v.  Overhy,  11  Gratt.  206;   Ross  v.   Milne,  12  Leigh  277; 
4  Min.  Inst.  947;  11  Encl.  PI.  &  Pr.  915. 

52.  Ivanhoe  Furnace  Corp.  v.  Crowder,  110  Va.  387,  66  S.  E.  63. 

53.  11   Encl.   PI.   &  Pr.  917. 


§    308  VENIRE    FACIAS    DE    NOVO  575 

repleader  should  be  awarded  on  motion  of  the  -plaintiff,  because  it 
is  immaterial  to  the  merits,  whether  the  personal  representative 
assumed  or  not.54  In  the  case  of  a  repleader  (unlike  a  judgment 
non  obstante)  the  pleading  is  not  by  way  of  confession  and  avoid- 
ance, but  by  way  of  traverse  on  an  immaterial  point,  and  the  court 
cannot  tell  what  judgment  to  enter.  Here  it  is  necessary  for  the 
court  to  set  aside  all  the  pleadings  back  to  and  including  the  faulty 
one,  and  require  the  parties  to  plead  over,  so  as  to  come  to  issue 
on  some  material  point.55 

The  court  will  never  grant  a  repleader  except  where  complete 
justice  cannot  be  otherwise  obtained,  and,  although  the  issue  may 
be  immaterial,  a  repleader  will  not  be  granted  if  it  appear  from 
the  record  that  even  had  the  plea  been  properly  pleaded  the  de- 
cision of  the  issue  must  have  been  the  same.56 

A  repleader  differs  from  a  judgment  non  obstante  ver edict o,  as 
hereinbefore  pointed  out,  in  this :  a  repleader  is  awarded  upon 
the  form  and  manner  of  the  pleading  where  the  court  cannot  tell 
for  whom  to  give  judgment,  whereas  a  judgment  non  obstante 
veredicto  is  always  upon  the  merits  where  it  appears  from  the 
pleader's  own  showing  that  he  has  no  proper  defence  to  make  to 
his  adversary's  pleading.57 

§    308.    Venire  facias  de  novo. 

Here  the  pleadings  are  correct,  and  there  is  neither  doubt  nor 
difficulty  about  them,  but  by  reason  of  some  irregularity  or  defect 
in  the  proceedings,  the  proper  effect  of  the  first  venire  or  trial 
has  been  frustrated,  or  the  verdict  has  become  void.  The  defect 
sought  to  be  avoided  by  this  motion  is  always  something  apparent 
on  the  face  of  the  record,  and  no  discretion  is  vested  in  the 
court.58  The  effect  of  the  award  of  the  veniie  de  novo  is,  of 
course,  a  new  trial,  and  it  summons  a  new  jury  to  decide  the 
case.  The  essential  differences  between  a  venire  facias  de  novo 
and  a  motion  for  a  new  trial  are:  (1)  that  the  venire  de  novo 

54.  Stephen's   Pleading,   §   127. 

55.  Stephen,  ubi  supra. 

56.  Bonsack  v.   Roanoke   County,   75   Va.   585. 

57.  4  Min.  Ins.  950. 

58.  Stephen's  Pleading,  §  127. 


576  MOTIONS   AFTER   VERDICT  §    308 

is  granted  only  on  matter  apparent  on  the  face  of  the  record, 
while  a  new  trial  may  be  granted  on  things  outside  of  the  record, 
as  if  the  verdict  appear  to  be  contrary  to  the  evidence,  or  it  ap- 
pears that  the  judge  has  misdirected  the  jury;  and  (2)  if  error 
appears  on  the  record  for  which  a  venire  facias  de  novo  may  be 
awarded,  the  court  has  no  discretion  in  the  premises,  but  is 
obliged  to  award  it,  whereas  a  motion  for  a  new  trial  is  addressed 
to  the  sound  discretion  of  the  trial  court,  subject  to  review  for 
manifest  error.59  It  is  said  by  Prof.  Minor60  that  a  venire  de 
novo  can  occur  in  only  three  cases : 

(1)  Where  it  appears  from  the  record  that  the  jury  has  been 
improperly  selected  or  returned,  or  that  a  challenge  has  been  im- 
properly disallowed.     The  motion  in  this  instance   must   be    be- 
fore the  jury  is  sworn  and  for  injury  occasioned  by  the  irregu- 
larity. 

(2)  Where  the  verdict  is  so  imperfect  on  its   face   that   no 
judgment  can  be  rendered.     Brown  v.  Ferguson,  4  Leigh  37. 

(3)  Where  it  appears  that  the    jury    ought    to   have    found 
other  facts  differently,  e.  g.,  in  trover,  the  jury  find  demand  by 
the  plaintiff  and  refusal  by  defendant  (mere  evidences  of  conver- 
sion), but  do  not  find  conversion;  or,  where  the  verdict  responds 
to  only  one  of  several  issues,  or  not  to  the  whole  of  the  issue. 
(Hite  v.  Wilson,  2  H.  &  M.  268),  or  on  a  plea  plene  administra- 
vit  the  verdict  is  against  the  defendant,  but  fails  to  find  amount 
of  assets.     Gooseley  v.  Holmes,  3  Call  424. 

It  is  said  that  a  venire  de  novo  most  frequently  originates  from 
a  special  verdict,61  but  it  may  occur  also  where  the  verdict  is 
general.62 

59.  Kinney  v.   Beverly,  2  H.  &  M.  318,  327;  4  Min.  Inst.  951. 

60.  4   Min.   Inst.   951. 

61.  Kinney  v.  Beverly,  2  H.  &  M.  318. 

62.  Hite  v.   Wilson,   2   H.   &   M.   268;    Gooseley   v.    Holmes,   3   Call 
424;   4   Min.    Inst.,   951. 


CHAPTER  XL. 
MINOR  INCIDENTS  OF  TRIM,. 

§  309.  Calling  the  docket. 

§  310.  Pleas  puis   darrein   continuance. 

§  311.  Profert   and    oyer. 

§  312.  Variance. 

§  313.  Views. 

§  314.  Retraxit. 

§  315.  Loss   or   destruction   of  notes   or   bonds 

Sealed  instruments. 

Negotiable  paper. 

Non-negotiable   paper. 

Summary. 

Present  state  of  law  in  Virginia. 
$  1116.  Costs. 

Cost  of  new  trial. 
§  317,  Nonsuit. 

Withdrawing  a  juror. 
§  318.  Bill  of  particulars. 

Object  of  the   statute. 

In  what  cases  required. 

Finality  of  the  bill. 

Insufficient  bill. 
§  319.  Second  trial. 

§    309.    Calling  the  docket. 

Usually  cases  of  the  commonwealth  have  preference,  and  are 
set  first  on  the  docket,  and  other  cases  are  arranged  according  to 
the  order  in  which  they  mature.1  In  Virginia,  unlawful  detainer 
has  preference  on  the  docket  over  all  other  civil  cases,2  and  gen- 
erally motions  and  attachments  come  next.  But  the  order  m 
which  the  trial  docket  of  the  court  is  arranged  has  been  herein- 
before set  forth  in  §  181.  The  disposition  of  a  case  when 
called  is  dependent  on  the  state  of  the  pleadings,  and  consequently 
upon  the  place  of  the  case  on  the  docket.  If  the  case  is  on  the 

1.  Code,  §  3378. 

2.  Code,  §  2717. 
—37 


578  MINOR    INCIDENTS  OF   TRIAL  §    310 

writ  of  enquiry  docket,  there  has  been  no  plea  by  the  defendant, 
and  hence  he  is  not  consulted  as  to  whether  the  writ  shall  be 
executed  (i.  e.,  evidence  offered  and  damages  assessed),  or  the 
case  continued.  If  he  enters  no  plea  he  may,  nevertheless,  by 
cross  examination  of  the  plaintiff's  witnesses,  or  by  independent 
evidence  on  his  own  part,  contest  the  amount  of  his  liability,  but 
not  the  right  of  the  plaintiff  to  recover.-'5  If  he  pleads,  the  plain- 
tiff is  entitled  to  a  continuance  as  a  matter  of  right,  or  may  take 
issue  on  the  plea  and  go  to  trial  at  the  same  term.  The  defend- 
ant, however,  is  not  entitled  to  a  continuance  as  a  matter  of  right, 
but  must  come  prepared  to  support  his  plea,  and '  is  only  en- 
titled to  a  continuance  for  good  cause  shown.4  If  the  case 
stands  on  the  issue  docket,  i.  e.,  the  issues  have  been  made  up  be- 
fore the  term  begins,  neither  party  is  entitled  to  a  continuance  as 
a  matter  of  right,  but  must  show  cause  therefor.  If  neither 
party  is  ready,  the  case  will  be  continued  as  a  matter  of  course, 
except  under  very  exceptional  circumstances.  If  counsel  for  the 
defendant  announces  himself  ready,  and  the  plaintiff  is  unable  to 
show  cause  for  a  continuance,  he  may  suffer  a  non-suit  and  thus 
prevent  an  adverse  verdict  upon  payment  of  $5  damages,  and  the 
costs.  A  non-suit,  however,  does  not  prevent  a  new  action  for 
the  same  cause.  The  defendant,  on  the  contrary,  has  no  such 
privilege.  If  the  plaintiff  is  ready,  but  the  defendant  is  not, 
and  is  unable  to  show  good  cause  for  continuance,  he  must  go 
to  trial  anyhow  and  abide  the  results.  He  cannot  postpone  the 
hearing.  If  the  case  is  on  the  office  judgment  docket,  it  is  unnec- 
essary to  call  it  at  all.  No  action  on  the  part  of  the  plaintiff  is 
necessary,  as  the  office  judgment  will  automatically  become  final, 
if  not  set  aside  in  the  method  prescribed  by  statute.  If  the  defend- 
ant wishes  to  make  defence,  he  is  allowed  to  have  the  judgment 
entered  against  him  in  the  office  set  aside,  upon  pleading  to  the 
merits  of  the  case  within  the  time  prescribed  by  law.5 

§  310.    Pleas  puis  darrein  continuance. 

At  common  law  a  defendant  could  plead  only  one  plea,  and  if 

3.  Ante,  §  181,  note  14. 

4.  Ante,   §   243,   p.   462. 

5.  See  ante.  §  181. 


§  310  PLEAS  PUTS  BAHREIN  CONTINUANCE  579 

anything  happened  between  the  continuances  which  would  be  a 
better  answer  to  the  declaration  than  the  plea  already  pleaded, 
he  was  allowed  to  plead  it  by  way  of  substitution  for  the  plea 
pleaded,  provided  he  alleged  that  it  occurred  since  the  last  con- 
tinuance. He  could  not  plead  the  plea  as  a  matter  of  right.  The 
excuse  for  not  pleading  it  sooner  was  that  it  had  only  happened 
since  the  last  continuance,  and  hence  could  not  have  been 
pleaded  sooner ;  and,  as  he  could  have  only  one  plea,  this 
one  was  of  necessity  offered  as  a  substitute  for  the  other.  If 
offered  at  a  later  term  than  the  first  after  the  matter  arose,  it 
was  in  the  discretion  of  the  trial  court,  whether  or  not  it  should 
be  received. 

At  common  law,  as  stated  above,  this  plea  supersedes  all  other 
pleas  and  defences,  and  the  pleading  then  begins  de  novo,  and  is 
conducted  to  issue  as  upon  any  other  plea.  The  plea  must 
specify  clearly  the  date  of  the  last  continuance,  and  the  time  and 
place  where  the  matter  arose.  The  plea  may  be  in  bar  or  abate- 
ment, and  must  conform  strictly  to  any  other  plea  of  the  same 
nature.6 

It  is  important,  therefore,  to  observe  when  a  plea  is  in  fact  a 
plea  f>uis  darrein  continuance.  To  be  such  it  must  set  up  some 
matter  which  has  arisen  since  former  pleadings  were  filed.  It  is 
not  sufficient  that  it  was  not  then  knozwi  if  it  in  fact  existed. 
"There  is  a  distinction  between  a  plea  setting  up  matter  of  de- 
fence which  has  arisen  since  the  commencement  of  the  action, 
but  before  plea,  and  one  alleging  matter  originating  after  plea 
pleaded.  Those  facts  which  occur  after  the  commencement  of 
the  suit,  but  before  plea  pleaded,  must  be  pleaded  to  the  further 
maintenance  of  the  suit."7  Payment,  release,  and  other  defences 
arising  since  action  commenced  may  be  pleaded  under  the  last 
mentioned  plea.  If  such  matters  are  pleaded  along  with  other 
defences,  (  where  more  than  one  plea  is  allowed)  then  there  is 
no  waiver  of  the  other  defences,  although  matter  so  pleaded 
arose  since  the  institution  of  the  action. 

Pleadings,  as  a  rule,  speak  as  of  the  time  of  the  institution  of 
the  action,  and  general  issues  and  special  pleas,  unless  otherwise 

6.  See   Andrews'   Stephen,   p.  200.   and   cases   cited. 

7.  17   Encl.   PI.   &   Pr.   205. 


580  MINOR   INCIDENTS  OF   TRIAL  §    310 

specially  set  forth,  speak  as  of  that  date,  hence  matter  arising 
after  that  date  should  be  specially  pleaded,  though  the  plea  would 
not  be  technically  a  plea  puis  darrein  continuance.  Neither  pay- 
ment, nor  any  other  matter  arising  since  action  brought,,  can  be 
shown  under  the  general  issue,  but  must  be  pleaded  specially 
either  to  further  maintenance  of  the  suit  (action)  or  puis  darrein 
continuance.* 

In  Virginia  a  defendant  may  plead  as  many  several  matters, 
whether  of  law  or  fact,  as  he  may  see  fit,  and  therefore  new  mat- 
ters previously  existing,  though  unknown  to  the  defendant,  may 
be  pleaded  as  additional  pleas,  and  not  as  substitntional,  and  it  is 
not  necessary  to  show  on  the  face  of  the  plea  why  there  was  de- 
lay in  filing  it,  but  if  objection  is  made  to  the  time  of  filing  it, 
the  reason  may  be  shown  dehors  the  plea.  This  is  believed  to  be 
the  rule  as  to  matter  not  arising  since  the  last  continuance.  But 
if  the  matter  is  really  of  the  latter  nature,  is  the  plea  setting  it 
up  substitutional  ?  Judge  Tucker  thinks  not,  but  admits  he 
knows  of  no  case  taking  his  view.9  He  simply  bases  his  argu- 
ment on  the  statute  allowing  the  defendant  to  file  as  many  pleas 
as  he  desires,  and  this  seems  to  be  sound. 

The  authorities,  in  the  absence  of  statute  dealing  with  pleas, 
seem  to  hold  otherwise,  and  to  regard  such  a  plea  as  a  waiver  of 
all  other  defences.  There  seems  to  be  no  Virginia  case  directly 
in  point.10 

Pleas  in  abatement  puis  darrein  continuance,  contrary  to  the 
general  rule,  may  be  pleaded  after  pleas  in  bar,  but  must  be  at 
the  first  term  after  the  matter  of  abatement  arose.11 

While  any  proper  matter  may  be  pleaded  specially  puis  darrein 
continuance,  the  student  will  observe  that  there  is  no  such  plea 
as  a  plea  puis  darrein  continuance.  To  speak  of  such  a  plea  in 
the  sense  of  setting  up  any  particular  defence  is  simply  absurd. 

8.  Nichols  v.  Campbell,  10  Gratt.  560. 

9.  Tucker's  Pleading,  p.  88. 

10.  See  Crawford  v.  Burke,  105  U.  S.  176,  citing  111.  cases;  17  Encl. 
PI.  &  Pr.  262,  giving  full  citation  of  cases;  Austin  v.  Jones,  Gilmer, 
341. 

11.  4  Minor  (3d  Ed.)  729. 


§311  PROFERT    AND    OVER  581 

§  311.    Profert  and  oyer. 

It  is  a  rule  of  pleading  that  where  a  deed  is  alleged  under 
which  a  party  claims  or  justifies,  profert  of  such  deed  must  be 
made,  that  is,  it  must  be  tendered  along  with  the  pleading.  This 
tender  was  made  by  the  language  in  the  pleading  "now  to  the 
court  here  shown."  For  example,  in  debt  on  a  bond,  the  allega- 
tion is  that  the  defendant  "made  his  certain  writing  obligatory, 
now  to  the  court  here  shown,  bearing  date,  etc."  This  formula 
is  called  making  profert.  The  rule  in  general  applies  to  deeds 
only.  No  profert,  therefore,  was  necessary  of  any  writing, 
agreement  or  instrument  not  under  seal,  nor  of  any  instrument, 
which,  though  under  seal,  does  not  fall  within  the  technical  defi- 
nition of  a  deed,  as,  for  example,  a  sealed  will  or  award.  Exec- 
utors and  administrators,  however,  were  required  to  make  pro- 
fert of  letters  testamentary  and  letters  of  administration. 

The  rule  applies  only  to  cases  where  there  is  occasion  to  men- 
tion the  deed  in  pleading.  Where  the  course  of  allegation  is  not 
such  as  to  lead  to  any  mention  of  the  deed,  a  profert  is  not 
necessary,  even  though  in  fact  it  may  be  the  foundation  of  the 
case  or  title  pleaded.  Furthermore,  the  rule  extends  only  to 
cases  where  a  party  claims  or  justifies  under  a  deed,  and  hence 
profert  is  not  necessary  of  a  deed  which  is  mentioned  only  as  a 
matter  of  inducement.12  This  profert  of  the  deed,  however,  did 
not  make  it  a  part  of  the  record,  and  if  the  opposite  party  wished 
to  have  it  made  a  part  of  the  record,  so  as  to  make  it  the  basis 
of  any  pleading  on  his  part,  he  asked  to  have  it  read,  which  was 
called  craving  oyer  of  it.  In  Virginia,  and  West  Virginia  it  is 
provided  by  statute  that  it  shall  be  unnecessary  "to  make  profert 
of  any  deed,  letters  testamentary  or  commission  of  administra- 
tion, but  a  defendant  may  have  oyer  in  like  manner  as  if  profert 
was  made."13  While  it  is  unnecessary  in  Virginia  for  the  plain- 
tiff to  make  formal  profert  of  a  sealed  instrument  which  he 
makes  the  basis  of  his  action,  yet  it  is  the  practice  for  him  to  file 
such  instrument  or  a  copy  thereof  along  with  his  declaration.  If 

12.  Stephen   on    Pleading,    §   256;    Langhorne   v.    Rich.    Ry.   Co.,    91 
Va.  369,  22  S.   E.  159. 

13.  Code.  §  3244;  W.  Va.  Code,  §  3853. 


582  MINOR   INCIDENTS   OF  TRIAL  §    311 

he  does  so,  and  the  defendant  wishes  to  have  oyer  of  it,  he  simply 
takes  it  in  his  pleading.  He  does  that  in  this  way.  He  writes 
out  his  pleading,  in  which  he  says :  "The  defendant  comes  and 
craves  oyer  of  the  deed  in  the  plaintiff's  declaration  mentioned, 
which,  being  read  to  him,  is  in  the  words  and  figures  following, 
to-wit:  (here  he  copies  into  his  plea  the  deed  filed  by  the  plain- 
tiff with  his  declaration)  and  thereupon  the  defendant  for  plea 
says."  This,  it  will  be  observed,  may  be  done  at  rules  as  well  as 
in  term.14  If  the  plaintiff  fails  to  file  the  deed  along  with  his 
declaration,  and  it  is  necessary  as  the  basis  of  the  defence  to  be 
made  by  the  defendant,  he  may  give  notice  in  writing  to  the  plain- 
tiff to  produce  it,  and,  if  it  is  a  proper  case,  and  can  be  produced, 
the  court  will  compel  its  production,  and  when  produced,  oyer 
may  be  taken  of  it  in  the  manner  above  indicated.15  When  oyer 
is  thus  had  of  the  instrument  it  thereby  becomes  per  sc  a  matter 
of  record  as  fully  to  all  intents  and  purposes  as  if  it  were  copied 
at  large  in  the  plaintiff's  declaration.  The  method  of  taking  ad- 
vantage of  defences  arising  upon  oyer  differs  according  to  the 
circumstances  of  the  case.  If  the  object  is  to  show  a  misdescrip- 
tion  of  a  deed  which  is  made  the  basis  of  the  action,  advantage 
is  taken  of  it  by  a  demurrer  to  the  declaration.  Thus,  if  a  bond 
is  misdescribed  as  to  the  date,  amount,  names  of  parties,  or  other- 
wise, the  defendant  comes  and  craves  oyer  of  the  bond,  which, 
as  seen,  'makes  it  a  part  of  the  declaration.  It  thereupon  appears 
on  the  face  of  the  declaration  that  the  bond  described  in  the  dec- 
laration is  different  from  the  bond  as  it  actually  exists.  This 
makes  a  variance  apparent  on  the  face  of  the  declaration,  and  the 
course  of  the  defendant  is  to  demur.16 

We  have  heretofore  seen  that  the  writ  may  be  consulted  for 
the  purpose  of  amendment  so  as  to  support  a  judgment,  but  not 
to  defeat  it,  and,  as  a  general  rule,  it  is  no  part  of  the  record.  But 
if  there  is  a  variance  between  the  declaration  and  the  writ,  and 
the  defendant  wishes  to  take  advantage  of  this  variance,  he  may 
do  so  only  by  a  plea  in  abatement.  The  course  of  the  defendant 
in  such  case,  therefore,  would  be  to  crave  oyer  of  the  writ  and 

14.  Smith   ?'.    Lloyd,   16    Gratt.    295. 

15.  Smith  v.  Lloyd,  supra. 

16.  Ante,   §    205,    p.   349. 


§    311  PROFERT   AND  OVER  583 

plead  in  abatement  the  variance  between  the  declaration  and  the 
writ.17  If,  however,  the  only  variance  is  misnomer  of  a  party, 
this  is  not  the  subject  of  a  plea  in  abatement  in  Virginia,  but  on 
defendant's  motion,  and  on  affidavit  of  the  right  name,  the  decla- 
ration is  amended  by  inserting  the  right  name.ls 

If  the  object  of  the  defendant  is  not  to  show  a  misdescription 
of  the  deed  sued  on,  nor  a  variance  between  the  declaration  and 
the  writ,  but  to  base  his  defence  on  the  terms  of  the  deed,  the 
course  of  the  defendant  is  to  crave  oyer  of  the  deed,  and  of  the 
condition  thereunder  written,  if  there  is  one,  and  then  to  plead 
the  substance  of  the  matter  relied  upon.  This  generally  arises  in 
cases  where  the  plaintiff  has  sued  upon  a  deed  with  some  condi- 
tion thereunder  written. 

In  an  action  of  debt  on  a  bond  with  collateral  condition 
there  were  two  modes  of  suing  both  in  England  and  in  Vir- 
ginia. The  plaintiff  might  declare  upon  the  obligatory  part  of 
the  bond,  taking  no  notice  whatever  of  the  condition,  that  is,  the 
action  appeared  to  be  for  the  penalty  of  the  bond.  If  then  the 
defendant,  as  he  might,  craved  oyer  of  the  bond  and  of  the  con- 
dition underwritten,  and  pleaded  that  he  had  performed  the  con- 
dition of  the  bond,  the  plaintiff  must  then  by  his  replication  as- 
sign particularly  the  breaches  of  the  condition,  or  if  there  was 
no  appearance  for  the  defendant,  it  is  said  that  the  plaintiff  must 
assign  the  breaches  by  a  suggestion  of  them  in  writing.  In 
either  event,  he  might  assign  as  many  breaches  as  he  chose. 
This  was  one  remedy  that  the  plaintiff,  had,  or  he  could  set 
out  the  bond  with  the  condition  underwritten  and  assign  specific- 
ally the  breaches  in  his  declaration,  and  that  is  what  was  generally 
done.  In  this  latter  case,  of  course,  there  was  no  necessity  for 
craving  oyer,  as  the  plaintiff  has  set  out  the  bond  with  the  con- 
dition thereunder  written.  Now  it  is  believed  that  the  statute  in 
Virginia19  compels  a  plaintiff  to  adopt  the  latter  course,  as  the 
statute  declares  that  the  plaintiff  shall  in  his  declaration  or  scire 
facias  assign  the  specific  breaches,  and  this  is  believed  to  be  man- 

17.  Code,  §  3259. 

18.  Code,  §  3258. 

19.  Code,  §  3394. 


584  MINOR   INCIDENTS  OF   TRIAL  §    312 

datory.  If  so,  a  declaration  which  failed  to  assign  breaches 
would  be  bad  on  demurrer  if  the  defendant  craved  oyer  of  the 
writing  obligatory  and  demurred.20 

If  the  instruments  sued  on  is  sealed,  but  is  misdescribed  in  the 
declaration,  and  the  defendant  wishes  to  take  advantage  of  the 
misdescription,  he  may  do  so  in  either  of  two  ways:  (1)  he 
may  crave  oyer  and  demur  as  hereinbefore  set  forth,  or  (2)  with- 
out craving  oyer,  he  may  wait  until  the  deed  is  offered  in  evi- 
dence, and,  when  offered,  object  to  its  reception  for  the  variance. 
In  the  latter  event,  he  in  effect  says  to  the  plaintiff,  "You  have 
sued  me  on  one  obligation,  and  you  now  offer  in  evidence 
another."  This  cannot  be  done  as  the  allegation  and  proof  must 
correspond.  If,  however,  the  instrument  sued  on  is  not  sealed, 
here  there  can  be  no  oyer  of  it,  and  hence  there  is  no  method 
of  taking  advantage  of  the  misdescription  except  to  object  to  its 
introduction  in  evidence  in  the  manner  hereinbefore  pointed  out. 
If  the  instrument  sued  on  is  in  fact  a  sealed  instrument,  but  is 
not  sued  on  as  such,  that  is,  the  plaintiff  in  his  declaration  does 
not  declare  on  it  as  a  sealed  instrument,  the  defendant  cannot 
crave  oyer  of  the  instrument,  but  can  only  take  advantage  of 
the  variance  by  objecting  to  its  introduction  when  offered  in  evi- 
dence.21 

At  common  law,  if  the  plaintiff  sued  upon  a  sealed  instrument, 
and  failed  to  make  profert  of  it  in  his  declaration  as  he  should 
do,  it  was  good  ground  for  demurrer ;  but,  as  hereinbefore 
pointed  out,  no  profert  is  now  necessary  in  Virginia,  but  in  all 
cases  where  profert  would  be  proper  oyer  may  be  had  as  though 
profert  were  made,  and,  if  the  instrument  is  not  actually  pro- 
duced, its  production  may  be  compelled  upon  notice. 

§    312.    Variance. 

In  every  system  of  reasoning,  and  certainly  in  all  modes  of 
procedure,  the  allegation  and  the  proof  must  correspond.  A 
party  will  not  be  allowed  to  hale  his  adversary  into  court  on  one 
statement  of  facts,  and  then  prove  another.  The  variance,  how- 

20.  4   Min.   Inst.   703-'4. 

21.  Grubbs  v.  Nat.   Ins.  Co.,  94  Va.   589.  27   S.   E.  464. 


§    312  VARIANCE  585 

ever,  between  the  allegation  and  the  proof  must  be  in  a  material 
matter.  Mere  immaterial  variances  will  be  treated  as  surplus- 
age. The  cases  illustrating  what  variances  are  material  and  what 
are  not  are  so  numerous  that  it  would  be  impracticable  to  cite 
them.  A  few  are  mentioned  in  the  margin.22  Assuming  that  a 
variance  is  material,  it  is  important  to  determine  how  the  objec- 
tion is  to  be  raised,  and  when  raised,  how,  if  at  all,  it  may  be 
obviated.  If  the  objection  is  that  a  written  instrument,  sealed  or 
unsealed,  varies  or  is  different  from  the  instrument  as  set  forth 
in  the  pleadings,  in  other  words  there  is  a  misdescription,  the 
method  of  taking  advantage  of  it  has  been  pointed  out  in  the  last 
preceding  section.  So  also,  there  was  pointed  out  in  that  section 
the  method  of  taking  advantage  of  a  variance  between  the  writ 
and  the  declaration.  The  variance  now  to  be  discussed,  and  the 
one  which  most  frequently  arises,  is  a  variance  between  the  alle- 
gations in  the  pleadings,  and  the  evidence,  other  than  writings, 
offered  to  support  them.  The  object  of  a  declaration  is  to  set 
forth  the  facts  which  constitute  the  cause  of  action  so  that  they 
may  be  understood  by  the  defendant  who  is  to  answer  them,  by 
the  jury  who  are  to  ascertain  whether  such  facts  exist,  and  by 
the  court  which  is  to  give  judgment.23  Supposing  the  declaration 
or  other  pleading  to  be  sufficient,  the  proof  must  substantially 
correspond  with  it.  If  it  does  not,  objection  should  be  made  on 
that  account,  but  this  objection  should  be  made  at  'the  proper 
time.  In  case  of  variance  between  the  evidence  and  the  allega- 
tions, the  usual  and  correct  practice  is  to  object  to  the  evidence 
when  offered,  or  if  it  is  already  in,  to  move  to  exclude  it.  At- 
tention is  thus  called  to  the  discrepancy  and  an  opportunity  af- 
forded the  adverse  party  to  meet  the  emergency  in  a  proper  case 
in  one  of  the  modes  prescribed  by  law.  The  objection  cannot  be 
raised  for  the  first  time  in  the  appellate  court.24  It  will  be  ob- 

22.  Rich.  Ry.  Co.  r.  Bowles,  92  Va.  739,  24  S.  E.  388;  Eckles  v.  N., 
etc..  R.  Co.,  96  Va.  69,  25  S.  E.  545;  Rich.  Ry.  Co.  v.  West,  100  Va. 
184,  40  S.  E.  643;  Moore  r.  B.  &  O.  R.  Co.,  103  Va.  84,  48  S.  E.  887. 
See.  also,  citations  to  §  3384  of  the  Code. 

23.  Eckles  f.   X.   &  W.   R.   Co.,   96   Va.   69.,   25   S.    E.   545. 

24.  Portsmouth  Street  Ry.  Co.  r.  Peed.  102  Va.  662,  47  S.  E.  850; 
Moore   Lime   Co.   r.   Johnston,    103   Va.   84,   48   S.    E.   557;    Trump  v. 
Tidewater,  46  W.  Va.  238.  32  S.  E.  1035. 

Section   3384   of  the   Code   is   as   follows:    "If.   at   the   trial   of  any 


586  MINOR  INCIDENTS  OF  TRIAL  §  312 

served  that  the  method  of  avoiding  the  effect  of  a  variance 
between  the  allegations  and  the  proof  provided  by  the  Vir- 
ginia statute  is  either  (1)  by  allowing  the  pleadings  to  be 
amended,  or  (2)  the  court  may  direct  the  jury  to  find  ihe 
facts,  and,  after  such  finding,  if  it  considers  the  vari- 
ance such  as  could  not  have  prejudiced  the  opposite  party, 
shall  give  judgment  according  to  the  right  of  the  case.  Courts, 
in  the  exercise  of  their  general  jurisdiction,  may  permit  plead- 
ings to  be  amended  independently  of  statute,  except  in  so  far  as 
they  are  prohibited  by  statute.25  The  subject  is  largely  placed 
in  the  discretion  of  the  trial  court  by  the  Virginia  statute  which 
allows  pleadings  to  be  amended  on  such  terms,  as  to  payment  of 
costs  or  postponement  of  the  trial,  or  both,  as  it  may  deem  rea- 
sonable. Generally,  the  trial  courts  are  liberal  in  allowance  of 
amendments,  and,  unless  the  amendment  is  of  such  nature  as 
would  permit  the  introduction  of  evidence  which  might  take  the 
opposite  party  by  surprise,  no  delay  is  occasioned,  but  the  amend- 
ment is  made  at  the  bar,  and  the  trial  proceeds  as  though  no  vari- 
ance had  taken  place.  If  the  amendment  would  occasion  sur- 
prise by  permitting  the  introduction  of  evidence  which  would 
otherwise  not  be  admissible,  then  the  case  should  be  continued, 
and  the  opposite  party  permitted  to  make  such  amendment  of  his 
pleadings  in  reply  as  may  be  necessary.  Of  course,  a  party  is 
never  permitted  to  make  an  entirely  new  case  by  his  amendments. 
The  Virginia  Court  of  Appeals  has  made  frequent  reference  to  the 
provisions  of  section  3384  of  the  Code,  permitting  a  special  ver- 
dict finding  the  facts,  and  there  may  be  cases  where  this  method 
of  procedure  would  be  advantageous,  but  they  are  of  rare  occur- 

action,  there  appears  to  be  a  variance  between  the  evidence  and 
allegations  or  recitals,  the  court,  if  it  consider  that  substantial 
justice  will  be  promoted  and  that  the  opposite  party  cannot  be 
prejudiced  thereby,  may  allow  the  pleadings  to  be  amended,  on 
such  terms  as  to  the  payment  of  costs  or  postponement  of  the  trial, 
or  both,  as  it  may  deem  reasonable.  Or,  instead  of  the  pleadings 
being  amended,  the  court  may  direct  the  jury  to  find  the  facts, 
and,  after  such  finding,  if  it  consider  the  variance  such  as  could 
not  have  prejudiced  the  opposite  party,  shall  give  judgment  accord- 
ing to  the  right  of  the  case." 

25.  Travis  r.  Peabody,  28  W.  Va.  583. 


§  313  VIEWS  587 

rence  ;  the  other  provision  of  the  statute  with  reference  to  amend- 
ments being  the  one  usually  adopted.  If  there  is  a  variance  be- 
tween the  allegation  and  the  proof,  and  objection  is  made  on  that 
account,  and  the  party  against  whom  the  variance  is  alleged 
neither  asks  to  amend  his  pleadings,  nor  for  a  special  verdict 
finding  the  facts,  the  trial  court  should  exclude  the  offered  evi- 
dence.-0 If,  however,  notwithstanding  the  variance,  no  objec- 
tion was  made  to  the  admissibility  of  the  evidence,  and  no  mo- 
tion was  made  to  exclude  on  account  of  the  supposed  variance,  the 
objection  must  be  considered  on  appeal  as  waived,  and  it  is  said 
that  a  different  rule  of  practice  would  deprive  the  plaintiff  in 
such  case  of  the  benefits  of  §  3384  of  the  Code,  noted  in  the  mar- 
gin.27 If  the  party  should  adopt  the  course  of  a  special  verdict 
finding  the  facts,  and  it  should  develop  from  the  evidence  that 
the  variance  is  not  material,  and  is  such  as  could  not  have  prej- 
udiced the  opposite  party,  then  of  course  the  court  will  give  judg- 
ment according  to  the  right  of  the  case,  and  thereby  avoid  a  con- 
tinuance. An  amendment,  however,  of  the  pleadings  to  conform 
to  the  facts  where  the  variance  is  immaterial  would  disclose  the 
immateriality  of  the  variance,  and,  in  such  case,  even  if  the  plead- 
ings are  amended,  no  continuance  would  result ;  and  hence,  as 
stated,  the  procedure  by  special  verdict  is  seldom  resorted  to. 

§    313.    Views. 

At  common  law  "in  most  real  and  mixed  actions,  in  order  to 
ascertain  the  identity  of  the  land  claimed  with  that  in  the  tenant's 
possession,  the  tenant  is  allowed,  after  the  demandant  has 
counted,  to  demand  a  rim*  of  the  land  in  question,  or,  if  the  sub- 
ject of  claim  be  a  rent  *  *  *  a  view  of  the  land  out  of  which 
it  issues.  This,  however,  is  confined  to  real  or  mixed  actions, 
for,  actions  personal,  the  view  does  not  lie."28  This  sort  of  view 
is  not  known  in  Virginia,  as  the  kind  of  actions  to  which  it  was 
applicable  do  not  exist,  but  provision  is  made  by  statute  to  give 

26.  Richmond   Spike   Co.  r.   Chesterfield  Coal   Co.,   102  Va.  417,   46 
S.   E.   397. 

27.  See  ante,  p.  585,  note  24;  Newport  News  R.  Co.  v.  McCormick, 
106  Va.  517,  56  S.   E.  281. 

28.  Stephen  on  Pleading,  §  109. 


588  MINOR  INCIDENTS   OF  TRIAL  §    313 

a  jury  a  view  of  the  premises,  or  place  in  question,  or  any  matter, 
or  thing,  relating  to  the  controversy  between  the  parties,  when- 
ever it  shall  appear  to  the  court  that  such  a  view  is  necessary  to  a 
just  decision.29  A  motion  under  this  statute  is  peculiarly  within 
the  discretion  of  the  trial  court,  and  its  ruling  refusing  the  view 
will  not  be  disturbed,  unless  it  is  made  clearly  manifest  that  such 
view  was  necessary  to  a  just  decision,  was  practicable,  and  the 
request  therefor  denied  to  the  probable  injury  of  the  party  ap- 
pealing.80 It  is  said  that  the  view  of  the  grounds  at  the  scene 
of  an  accident  which  is  the  basis  of  an  action  may  better  enable 
the  jury  to  apply  the  testimony  disclosed  upon  the  trial,  but  does 
not  authorize  them  to  base  their  verdict  on  such  view,  nor  to  be- 
come silent  witnesses  to  facts  which  were  not  testified  to  in 
court.31  The  theory  that  a  view  by  the  jury  is  not  a  means  of 
proof,  and  is  only  had  to  enable  the  jury  to  understand  the  evi- 
dence better,  is  also  held  by  other  courts.  But  it  is  said  by  Wig- 
more32  that:  "While,  as  already  pointed  out,  autoptic  prefer- 
ence is  to  be  distinguished  from  evidence,  both  testimonial  and 
circumstantial,  in  the  strict  sense  of  the  word,  it  is,  at  any  rate, 
an  additional  source  of  belief  or  proof,  over  and  above  the  state- 
ments of  witnesses  and  the  circumstantial  evidence.  Its  signifi- 
cance in  this  respect  has  often  been  discussed  by  courts  in  ruling 
upon  instructions  as  to  the  nature  of  jury  views,  and,  in  spite  of 
some  opposing  precedents,  the  generally  accepted  and  correct  doc- 
trine is  that  a  view  furnishes  a  distinctly  additional  source  of 

29.  Section  3167  of  the  Code  is  as  follows:    "The  jury  may,  in  anjr 
case,   civil   or   criminal,   at   the   request   of   either   party,    be   taken    to 
view    the    premises    or    place    in    question,    or    any    property,    matter 
or  thing,   relating  to   the   controversy   between    the   parties,   when   it 
shall  appear  to  the  court  that  such  view  is  necessary  to  a  just  de- 
cision:  provided,  that  in   a   civil   case   the   party   making   the   motion 
shall   advance   a   sum   sufficient   to   defray   the   expenses   of   the  jury, 
and  the  officers  who  attend  them  in  taking  the  view,  which  expenses 
shall  be  afterwards  taxed  like  other  legal  costs." 

30.  Gunn  v.  Ohio,  36  W.  Va.  165,  14  S.  E.  465;   Davis  v.  Tel.  Co., 
53   W.   Va.    616,   45    S.    E.   926;    B.    &   O.    R.    Co.   v.    Polly,    14    Gratt. 
447,  470. 

31.  Kimball  v.  Friend,  95  Va.  125,  27  S.  E.  901;  Fox  r.  Balto.  &  O. 
R.  Co.,  34  W.  Va.  466,  12  S.  E.  757. 

32.  1  Gr.   Ev.   (16  Ed.)   33-4. 


§314  RSTRAXIT  589 

proof,  i.  e.,  the  thing  itself  as  autopically  observed."  And  it 
has  been  held  in  \Yest  Virginia  that  to  instruct  the  jury  to  dis- 
regard everything  they  saw,  and  every  impression  they  derived 
from  the  view  would  be  to  mislead  them,  because  it  is  apparent 
that  the  view  would  be  useless  and  would  not  conduce  to  a  just 
decision  if  closed  against  the  results  naturally  to  be  derived  from 
an  inspection  of  the  premises.33  It  is  impossible  to  deprive  the 
jury  of  the  impression  derived  from  the  view.  They  may  at  a 
mere  glance  get  a  more  accurate  description  of  the  surroundings 
than  any  number  of  witnesses  could  ever  give  them,  and  it 
would  seem  impracticable  to  undertake  to  deprive  them  of  evi- 
dence thus  acquired.  For  example,  any  number  of  witnesses  may_ 
testify  as  to  the  rotten  and  defective  character  of  railroad  ties, 
but  when  a  jury  takes  a  view  of  the  premises  and  one  juror  pulls 
a  spike  out  of  a  tie  with  his  fingers,  no  amount  of  testimony  of 
witnesses  would  make  so  great  an  impression  upon  the  jury  as  to 
the  condition  of  those  ties.  Views  are  allowed  in  criminal  cases  as 
well  as  civil,  and  may  be  had  against  the  protest  of  the  prisoner. 
\Yhether  it  is  necessary  for  the  prisoner  to  be  present  at  the  view 
has  not  been  decided,  but  if  the  view  be  regarded  as  a  method  of 
proof,  it  would  seem  that  his  presence  is  necessary.  If  the  pris- 
oner is  present,  it  is  not  indispensable  that  his  counsel  should  be 
also.34 

§  314.    Retraxit. 

"A  retraxit  is  an  open  and  voluntary  renunciation  by  the 
)laintiff  in  open  court  of  his  suit,  and  the  cause  thereof.  The 
isual  and  proper  order,  where  there  is  a  retraxit,  is  as  follows: 
'This  day  came  the  plaintiff  in  his  proper  person,  and  here  in 
)pen  court  acknowledges  that  he  cannot  support  his  action,  and 
voluntarily  withdraws  the  same,  and  renounces  the  cause  thereof ; 
therefore  on  motion  of  the  defendant  by  his  attorney,  it  is  con- 
sidered by  the  court  that  the  plaintiff  take  nothing  by  his  bill, 
nit  for  his  false  clamour  be  in  mercy,  etc.,  and  that  the  defend- 

33.  Fox  v.   B.   &  O.   R.  Co..  34  W.  Va.  466,   12   S.   E.  757. 

34.  Williams  t'.  Com..  93  Va.  769,  25  S.  E.  659;  Litton  r.  Com.,  101 
ra.  833,  44  S.   E.  923. 


590  MINOR   INCIDENTS  OF  TRIAL  §    315 

ant  go  thereof  without  day,  and  recover  against  the  plaintiff  his 
costs  by  him  about  his  defence  expended.'  Rob.'s  Forms,  p.  96. 
"  'It  differs  from  a  non-suit/  says  the  court  in  Hoover  v.  Mitch- 
ell, 25  Gratt.  390-91,  'in  that  the  one  (the  latter)  is  negative, 
and  the  other  (the  former)  is  positive.'  ":{r> 

A  retraxit  can  only  be  entered  by  the  plaintiff  in  person  in 
open  court,  and,  when  entered,  it  not  only  terminates  the  present 
action,  but  bars  all  other  actions  for  the  same  cause.36  Where 
an  action  is  "dismissed  agreed,"  it  stands  on  the  same  footing 
as  a  retraxit?1  But,  as  hereinbefore  pointed  out,  the  mere  dis- 
continuance of  a  case  is  not  a  retraxit,  but  stands  on  the  same 
footing  as  a  non-suit,  and  does  not  bar  another  action  for  the 
same  cause.38 

"Where  a  plaintiff  sued  two  defendants  in  another  State,  and 
subsequently  filed  an  amended  complaint  in  which,  after  setting 
out  his  reasons  therefor,  he  states  that  he  makes  no  personal 
claims  against  one  of  the  defendants,  and  will  take  such  steps 
as  are  necessary  to  discontinue  his  action  as  to  that  defendant, 
this  does  not  amount  to  a  retraxit,  but  to  3  mere  discontinuance 
or  dismissal  of  his  action  as  to  that  defendant,  and  does  not  bar 
a  future  action  against  that  defendant  for  the  same  cause,  and 
hence  cannot  be  pleaded  as  an  estoppel."39 

§  315.    Loss  or  destruction  of  notes  or  bonds. 

Where  the  destruction  of  choses  in  action,  whether  negotiable 
or  non  negotiable,  has  been  distinctly  proved  by  clear  and  sat- 
isfactory evidence,  there  is  not  and  never  was  any  good  reason 
why  an  action  at  law  might  not  be  maintained  thereon.  The 
rule  is  different,  however,  where  the  proof  is  not  of  the  destruc- 
tion of  the  paper,  but  of  its  loss,  and  here  a  distinction  is  drawn 
between  sealed  instruments  and  unsealed,  and  those  which  are 
negotiable  and  those  which  are  not  negotiable. 

35.  Tate  v.   Bank,  96  Va.   765,  771,  32  S.   E.  476. 

36.  Muse  v.  Farmers'  Bank,  27  Gratt.  252. 

37.  Hoover  v.   Mitchell,  25   Gratt.   387. 

38.  Gaboon  v.   McCulloch,   92   Va.   177    22   S.   E.   225. 

39.  Portsmouth  Oil  Co.  v.  Oliver  Ref.  Co.,  Ill  Va.  745,  69  S.  E.  958. 


§  315       LOSS  OF  DESTRUCTION  OF  NOTES  OR  BONDS         591 

Scaled  Instruments. — It  was  a  rule  of  the  common  law  that 
whenever  a  plaintiff  based  his  right  of  action  upon  a  sealed  in- 
strument, he  was  required  to  make  profert  of  it,  but  if  it  was 
lost  he  could  not  do  this.  Equity  then  took  jurisdiction  of  the 
matter  on  account  of  the  inadequacy  of  the  remedy  at  law,  and 
not  only  undertook  to  set  up  the  lost  instrument,  but,  having 
all  the  parties  before  it,  to  enforce  it.  Many  reasons  have  been 
assigned  by  the  courts  for  the  jurisdiction  in  equity  and  for  the 
want  of  jurisdiction  at  law,  amongst  others,  the  inability  to 
make  profert,  avoidance  of  the  effect  of  an  accident,  the  inabil- 
ity of  a  court  of  law  to  require  indemnity,  and  the  like.40  It  is 
said :  "It  was  at  one  time  doubted  whether  the  loss  of  a  deed 
was  a  good  excuse  for  not  making  profert,  and  the  jurisdiction 
of  equity  in  such  cases  was  founded  on  the  idea  which  formerly 
existed,  that  there  was  no  remedy  at  law,  but  in  Read  v.  Brook- 
man,  3  T.  R.  151,  it  was  held  by  the  Court  of  King's  Bench  that 
it  was  a  sufficient  excuse  for  not  making  profert  of  a  deed  that 
it  was  'lost  and  destroyed  by  time  and  accident/  This  is  a  lead- 
ing case  on  the  subject,  and  placed  it  on  the  true  ground,  which 
is  that  the  law  compels  no  one  to  do  an  impossibility."41  It  has 
been  held  from  an  early  date  in  Virginia  that  an  action  at  law 
will  lie  on  a  lost  bond,42  and  such  jurisdiction  has  continued  to 
be  exercised. 

Negotiable  Paper. — If  the  paper,  however,  be  negotiable, 
whether  lost  before  or  after  maturity,  no  action  at  law  would 
lie  thereon,  because  upon  payment?  the  party  had  a  right  to  de- 
mand the  surrender  of  the  paper,  and  this  the  plaintiff  could 
not  do,  nor  could  a  court  of  law  require  proper  indemnity  for 
his  protection.43  It  is  s.aid,  however,  in  the  case  cited  in  the 
margin,  that  the  action  might  be  maintained  if  the  note  had  been 
destroyed,  or  if,  at  the  time  of  trial,  a  recovery  upon  the  lost 
note  would  be  barred  by  the  statute  of  limitations,  and  it  has 
been  held  in  Maine  that  an  action  at  law  may  be  maintained 

40.  13   End.   PI.   &  Pr.   356,   ff;   25   Cyc.   1610. 

41.  Smith  i'.  Lloyd,   16  Gratt.  305,  306. 

42.  Shields  r.  Com.,  4  Rand.  541. 

43.  Moses  7-.  Trice.  21  Gratt.  556;  note  94  Am.  St.  Rep.  468. 


592  MINOR  INCIDENTS  Of  TRIAL  §  315 

against  the  maker  of  a  lost  note,  but  the  plaintiff  may,  in  the 
discretion  of  the  court,  be  required  to  furnish  a  reasonable  kind 
of  indemnity,  or  the  case  may  be  continued  from  term  to  term 
until  the  note  is  barred  by  the  statute  of  limitations.44  It  will 
be  observed  that  both  the  case  in  Virginia  and  the  one  in  Maine 
seem  to  authorize  an  action  at  law  on  the  lost  note,  if  at  the 
time  of  trial  the  action  on  the  lost  note  is  barred  by  the  statute 
of  limitations.  This  would  seem  to  be  a  somewhat  doubtful 
proposition,  and  that  the  statement  should  be  that  the  action 
should  lie  if  at  the  time  when  the  action  was  brought,  and  not 
at  the  time  of  trial,  it  would  be  barred  by  the  statute  of  limita- 
tions. In  an  action  on  a  negotiable  note,  the  note  is  a  necessary 
part  of  the  plaintiff's  evidence,  and  there  can  be  no  judgment 
for  the  plaintiff  without  the  production  of  the  note.45  The  re- 
sult is  that  in  Virginia  and  other  states,  which  hold  that  a  court 
of  law  has  not  the  necessary  machinery  to  require  proper  indem- 
nity, no  action  at  law  will  lie  on  lost  negotiable  paper.  The  rule 
is  otherwise  in  some  States.46 

Non-Negotiable  Paper. — If  the  paper  was  not  negotiable,  the 
finder  could  not  transfer  good  title  to  any  party,  and  the  party 
bound  could  always  make  his  defences  as  well  against  the  finder 
or  party  holding  under  him  as  against  the  true  owner.  No  in- 
demnity was  necessary  there,  and  consequently  the  right  to  main- 
tain an  action  at  law  seems  to  be  clear.47 

Summary. — Prior  to  the  recent  Virginia  statute,  now  to  be 
considered,  an  action  at  law  oould  be  maintained  on  lost  bonds, 
and  lost  choses  in  action  of  any  kind,  provided  they  were  not 
negotiable.  If  the  paper  was  negotiable,  and  there  was  clear 
and  satisfactory  proof  that  it  was  destroyed,  an  action  at  law 
could  likewise  be  maintained,  but  upon  negotiable  paper  which 
was  simply  lost  or  mislaid  and  not  destroyed,  no  action  at  law 
would  lie.  Such  was  the  state  of  the  law  in  Virginia  when  the 
present  statute  was  enacted. 

44.  Mathews  v.  Mathews,  97   Me.  40,  53  Atl.  831,  94  Am.   St.   Rep. 
464,  and  note. 

45.  Davis  v.  Poland,  92  Va.  225,  23  S.  E.  292. 

46.  Note,  94  Am.  St.  Rep.  471. 

47.  Note,  94  Am.  St.  Rep.  469,  and  cases  cited. 


§  316  COSTS  593 

Present  State  of  the  Law  in  Virginia.^ — By  the  present  stat- 
ute in  Virginia  it  is  declared  that  an  action  at  law  or  motion  may 
be  maintained  on  any  past-due  lost  bond,  note,  or  other  evidence 
of  debt,  but  the  party  in  whose  favor  judgment  is  rendered  is 
not  to  have  the  benefit  of  the  judgment,  nor  be  allowed  to  issue 
any  execution  upon  it,  unless  and  until  he  has  executed  a  proper 
indemnifying  bond  as  set  forth  in  the  statute.  It  will  be  ob- 
served from  an  examination  of  this  statute  (1)  that  it  allows 
an  action  at  law  on  lost  negotiable  paper,  which  was  not  al- 
lowed prior  to  the  enactment  of  the  statute;  (2)  that  an  indemni- 
fying bond  is  required  in  all  cases  of  actions  on  lost  bonds,  notes, 
or  other  written  evidences  of  debt.  Prior  to  the  statute  an  action 
at  law  lay  on  lost  bonds  and  other  non  negotiable  paper  without 
requiring  any  indemnifying  bond.  (3)  It  is  not  necessary  to 
give  the  indemnifying  bond  required  by  the  statute  before  or 
at  the  time  that  the  action  is  brought,  but  only  after  judgment. 
Giving  the  indemnifying  bond  is  not  a  prerequisite  to  the  right 
to  obtain  judgment,  but  is  to  the  right  to  enjoy  the  benefit  of  the 
judgment,  or  have  an  execution  thereon.  (4)  It  should  be  fur- 
ther noted  that  formerly  no  bonds  were  negotiable,  but  the  fact 
that  an  instrument  is  under  seal  does  not  now  destroy  its  ne- 
gotiability, and,  since  the  adoption  of  the  negotiable  instruments 
act,  the  law  applicable  to  other  negotiable  instruments  is  likewise 
applicable  to  negotiable  bonds,  so  far  as  affects  the  right  to  sue. 
(5)  The  statute  leaves  the  former  law  unchanged  as  to  paper 
which  has  been  destroyed,  and  not  simply  lost. 

§  316.    Costs. 

The  subject  of  costs  in  actions  at  law  is  generally  regulated 

48.  Section  3377a  of  the  Code  is  as  follows:  "Hereafter  an  action 
at  law  or  motion  may  be  maintained  on  any  past-due  lost  bond, 
note,  or  other  written  evidence  of  debt:  provided,  however,  that  the 
party  in  whose  favor  judgment  may  be  rendered  shall  not  have  the 
benefit  of  the  same,  nor  shall  execution  issue  upon  it  until  he, 
or  someone  for  him,  shall  have  executed  bond  in  such  penalty  as 
the  court  may  deerri  just,  requiring  him  to  refund  such  amount  of 
principal,  interest  and  costs,  as  may  fully  indemnify  the  person 
against  whom  said  judgment  has  been  rendered,  in  case  the  said 
past-due  lost  bond,  note,  or  other  evidence  of  debt  should  after- 
wards be  discovered  in  the  hands  of  an  innocent  holder." 
—38 


594  MINOR  INCIDENTS  OF  TRIAL  §  316 

by  statute.  In  suits  in  equity,  costs  are  largely  in  the  discretion 
of  the  trial  court.49  As  a  general  rule,  a  party  for  whom  final 
judgment  is  given,  is  entitled  to  recover  his  costs  against  the 
opposite  party.50  Usually,  poor  persons  who  are  unable  to  sue 
or  defend,  and  yet  have  a  meritorious  cause  of  action,  have 
counsel  assigned  them  by  the  court,  and  are  given  the  services 
of  the  officers  of  the  court  without  compensation.51 

It  is  the  policy  of  the  law  not  to  encumber  the  courts  of  record 
with  the  trial  of  trivial  cases.  Consequently,  it  is  provided  in 
Virginia  that,  as  a  rule,  if  the  plaintiff  in  an  action  of  contract 
recovers  less  than  $20,  exclusive  of  interest,  judgment  shall  be 
given  for  the  defendant,  unless  the  court  will  enter  of  record 
that  the  matter  in  controversy  was  of  greater  value  than  $20, 
exclusive  of  interest,  in  which  case  it  may  give  judgment  for 
the  plaintiff  for  what  is  ascertained  to  be  due  him,  with  or  with- 
out costs  as  it  may  seem  right.52  If  the  action  be  not  upon  con- 
tract, and  the  verdict  found  for  the  plaintiff  be  for  less  than  $10, 
he  is  not  permitted  to  recover  any  costs,  unless  the  court  will 
enter  of  record  that  the  object  was  to  try  a  right,  irrespective 
of  damages,  or  that  the  trespass  or  grievance  was  wilful  or  ma- 
licious.53 If  the  court  renders  a  judgment  for  costs  in  violation 
of  this  statute,  it  is  in  excess  of  the  legitimate  power  of  the 
court,  and  a  writ  of  prohibition  will  lie  to  arrest  the  execution 
of  the  judgment  so  far  as  it  is  entered  for  costs.54 

If  the  plaintiff  is  a  non-resident  of  the  State,  upon  sugges- 
tion of  that  fact  by  the  defendant,  the  plaintiff  may  be  required 
to  give  security  for  the  costs.  The  Virginia  statute  on  this  sub- 
ject is  copied  in  the  margin.55  West  Virginia  has  a  correspond- 

49.  Code,  chapter  173. 

50.  Code,  §  3545. 

51.  Code,  §  3538. 

52.  Code,  §  3544. 

53.  Code,  §  3543. 

54.  Wilkinson  v.  Hoke,  39  W.  Va.  403,  19  S.  E.  520. 

55.  Section  3539  of  the  Code  is  as  follows:    "In  any  suit   (except 
where    such    poor    person    is    plaintiff),    there    may    be    a    suggestion 
on   the    record   in   court,   or    (if  the    case   be   at   rules)    on   the   rule 
docket,    by    a    defendant,    or    any    officer     of     the     court,     that     the 
plaintiff    is    not    a    resident    of    this    state,    and    that    security    is    re- 


§  316  COSTS  595 

ing  statute.56  Where  the  suggestion  of  the  non-residence  of 
the  plaintiff  has  been  made,  no  other  notice  to  him  is  required, 
as  he  has  submitted  to  the  jurisdiction  of  the  court  by  bringing 
his  action  and  must  take  notice  of  the  proceedings  therein.57 
An  order  that  the  suit  be  dismissed  unless  security  for  costs  be 
given  within  sixty  days,  however,  does  not  of  itself  operate  a 
dismissal,  but,  after  the  expiration  of  the  sixty  days,  an  order 
must  be  made  dismissing  the  action  for  want  of  security,  and 
until  such  order  has  been  made  the  plaintiff  may  give  the  se- 
curity, and  if  the  defendant  proceeds  to  trial  without  objection 
before  the  security  is  given,  he  will  be  deemed  to  have  waived 
it.58  The  security,  when  given,  applies  only  to  costs  in  the  trial 
court  and  not  to  costs  in  the  appellate  court.59  After  an  order 
has  been  made,  requiring  the  plaintiff  to  give  security,  for  costs 
within  sixty  days,  and  he  has  failed  to  give  it,  and  there  has 
been  a  motion  to  dismiss  for  his  failure,  he  should  be  allowed 
then  to  give  the  security,  if  he  offers  to  do  so,  and  it  is  error  to 
sustain  a  motion  to  dismiss.60  If  the  plaintiff  has  failed  to  give 
the  security  within  the  sixty  days,  but  does  give  it  at  the  next 
succeeding  term  thereafter,  he  cannot  then  compel  the  defendant 
to  go  to  trial,  if  the  latter  moves  for  a  continuance.61  If,  when  a 
case  is  called  for  trial  on  the  docket,  the  defendant,  for  the  first 

quired  of  him.  After  sixty  days  from  such  suggestion,  the  suit  shall, 
by  order  of  the  court,  be  dismissed,  unless,  before  the  dismission, 
the  plaintiff  be  proved  to  be  a  resident  of  the  state,  or  security 
be  given  before  said  court,  or  the  clerk  thereof,  for  the  payment 
of  the  costs  and  damages  which  may  be  awarded  to  the  defendant, 
and  of  the  fees  due,  or  to  become  due,  in  such  suit,  to  the  officers 
of  the  court.  The  security  shall  be  by  bond,  payable  to  the  com- 
monwealth, but  there  need  only  be  one  obligor  therein,  if  he  be 
sufficient  and  a  resident  of  the  state.  The  court  before  whom,  or 
before  whose  clerk,  such  bond  is  given,  may,  on  motion  by  a  de- 
fendant or  officer,  give  judgment  for  so  much  as  he  is  entitled  to  by 
virtue  of  said  bond." 

56.  W.  Va.  Code,  §  4125. 

57.  Dean  r.  Cannon,  37  W.  Va.  123,  16  S.  E.  444. 

58.  Enos  v.   Stansbury,    18    W.   Va.   477. 

59.  Bailey  v.  McCormick,  22  W.  Va.  95. 

60.  Goodtitle  v.   See,   1   Va.   Cas.    123. 

61.  Jacobs  r.  Sale.  Gilmer  123. 


596  MINOR  INCIDENTS  OF  TRIAI,  §    317 

time,  makes  a  motion  to  require  security  for  costs,  it  is  not  clear 
that  he  is  entitled  to  a  continuance  at  that  term,  if  the  security 
be  not  then  given.  If  he  has  had  an  opportunity  to  make  the  sug- 
gestion of  the  non-residence  of  the  plaintiff  at  an  earlier  date  and 
demand  security  for  costs,  but  has  failed  to  do  so,  it  would  seem 
that  he  should  not  be  allowed  to  take  advantage  of  his  own  re- 
missness  in  order  to  obtain  a  continuance.  There  may  be  cases, 
however,  where  he  has  not  had  this  opportunity,  as  in  case  of 
proceedings  under  a  fifteen  day  notice,  and  if  he  has  not  been 
negligent  in  this  respect,  he  ought  not  to  be  required  to  go  to 
trial.  So,  also,  if  a  rule  has  been  previously  made  upon  the  plain- 
tiff to  give  security,  the  defendant  should  not  be  forced  into  a 
trial  until  the  security  has  been  given. 

Cost  of  New  Trial. — The  subject  of  costs  when  a  new  trial 
has  been  granted  a  party  has  already  been  discussed,  ante,  §  304. 

§317.    Non-suit. 

Non-suit,  as  generally  used,  applies  only  to  a  failure  on  the 
part  of  the  plaintiff  to  prosecute  his  suit  from  any  cause  what- 
ever, and  may  occur  at  any  time  during  the  progress  of  the  trial 
before  the  jury  has  retired  to  consider  of  their  verdict,  or,  if 
the  case  is  tried  by  the  court  without  the  intervention  of  the  jury, 
before  the  case  has  been  submitted  to  the  court.62  The  term 
as  used  in  Virginia  includes  also  what  is  elsewhere  embraced  un- 
der the  term  non  prosequitur  (non  pros),  and  nolle  proseqni 
(nol  pros)'  The  latter  term,  however,  is  generally  applied  to 
criminal  cases  dismissed  by  the  commonwealth.  The  effect  of 
a  non-suit  is  simply  to  put  an  end  to  the  present  action,  but  is 
no  bar  to  a  subsequent  action  for  the  same  cause.  It  is  generally 
resorted  to  when  the  plaintiff  finds  himself  unprepared  with  evi- 
dence to  maintain  his  case,  either  in  consequence  of  being  ruled 
into  trial  when  not  ready,  or  when  surprised  by  the  testimony  of 
a  witness,  or  some  ruling  of  the  court,  or  other  similar  reason.63 
The  object  and  purpose  of  suffering  a  non-suit  is  to  avoid  an  ad- 
verse verdict,  for  if  the  pleadings  be  correct,  and  the  evidence 

62.  Harrison  v.  Clemens,  112  Va.  371,  71  S.  E.  538. 

63.  Gaboon  v.  McCulloch,  92  Va.  177,  180,  22  S.  E.  225. 


§  317  NON-SUIT  597 

does  not  support  the  allegation  of  the  pleadings,  a  verdict  would 
be  conclusive  against  the  plaintiff  and  bar  another  action  for  the 
same  cause.  The  matter  would  then  be  res  judicata.  For  in- 
stance, if  negligence  be  adequately  charged  in  an  action  of  tort, 
and  the  plaintiff,  on  account  of  the  absence  of  some  witness,  or 
for  any  other  cause,  is  unable  to  prove  the  case  stated  in  his  dec- 
laration, a  verdict  against  him  would  be  conclusive,  and  he  could 
not  thereafter  bring  a  new  action  for  the  same  cause.  In  order 
to  avoid  this  consequence,  he  suffers  a  non-suit,  or  voluntarily 
dismisses  his  -action.  The  same  result  would  not  follow  if  a  ver- 
dict were  found  against  the  plaintiff  on  one  state  of  pleadings 
and  a  new  cause  of  action  is  brought,  setting  out  a  different  case. 
For  example,  if  an  action  were  brought  against  the  endorser  of 
a  draft,  and  the  declaration  charged  that  the  draft  was  drawn  by 
John  Crouch,  but  the  evidence  showed  that  the  draft  was  in  fact 
drawn  by  John  Couch,  and  there  was  no  amendment  of  the  plead- 
ings, a  verdict  adverse  to  the  plaintiff,  on  account  of  the  variance, 
would  not  bar  a  new  action  by  him  charging  the  draft  to  have  been 
drawn  by  John  Couch.64 

It  is  provided  by  statute  in  Virginia  that  a  party  shall  not  be 
allowed  to  suffer  a  non-suit  unless  he  does  so  before  the  jury 
retire  from  the  bar.65  Nor  can  a  plaintiff  dismiss  his  action 
without  the  defendant's  consent,  where  the  defendant  has  set 
up  a  counter  claim  against  him.66  But  if  no  such  counter  claim 
has  been  set  up,  and  the  dismissal  will  not  prejudice  or  oppress 
the  defendant  nor  deprive  him  of  any  just  defense  or  substantive 
right  not  available  in  a  second  action  he  may,  ordinarily,  upon 
payment  of  costs  and  the  damages  given  by  statute  suffer  a  non- 
suit at  any  time  before  the  case  has  been  submitted  to  the  jury, 
and  they  have  retired  from  the  court  room,  or,  if  heard  by  the 
court,  before  the  case  is  submitted  to  the  court  hearing  it  as  a 
common  law  case  in  lieu  of  a  jury.67 

64.  7  Rob.  Pr.  189;   Graves  Pleading   (new),   §  38. 

65.  Code,  §  3387. 

66.  Code,  §  3303. 

67.  Harrison   v.    Clemens,    112    Va.    371,    71    S.    E.    538;    Kemper   r. 
Calhoun,    111    Va.    428,   69    S.    E.    358.     As    to   non-suit   at    Rules    for 
failure  to  file  a  declaration,  see  ante,  §  181. 


598  MINOR   INCIDENTS  OF  TRIAL,  §    317 

There  is  another  instance  not  generally  technically  called  a  non- 
suit, but  which  is  in  effect  a  non-suit.  It  is  the  case  of  a  dis- 
continuance. If  the  defendant  offers  a  plea  which  purports  to 
answer  only  a  part  of  the  plaintiff's  demand,  the  plaintiff  should 
take  issue  on  the  plea  and  sign  judgment  for  the  residue,  and 
if  he  fails  to  sign  judgment  for  the  residue,  the  case  is  discon- 
tinued and  dismissed  for  failure  to  follow  up  the  part  unnoticed 
in  the  plea.  At  least,  this  was  the  rule  at  common  law,  and  for- 
merly the  rule  in  Virginia,  but  little  attention  has  been  paid  to 
this  in  actual  practice  where  the  case  is  pending  on  the  court 
docket,  and  the  case  is  generally  disposed  of  as  if  the  plea  had 
purported  to  answer  the  whole  of  the  adverse  allegation.  If 
such  an  error,  however,  occurs  at  rules$  and  the  case  is  there  dis- 
continued, the  court  at  the  next  term  may  correct  the  proceed- 
ings at  the  rules,  -and  have  the  pleadings  properly  amended  in 
court  or  remand  the  case  to  rules  for  that  purpose ;  but  if  the  pro- 
ceedings are  corrected  in  court  without  remanding  to  rules,  it  is 
said  that  the  defendant  is  entitled  to  a  continuance  as  a  matter 
of  right  if  he  asks  it.69  It  is  the  practice  in  some  of  the  states 
to  direct  the  plaintiff  to  suffer  a  non-suit  where  the  plaintiff  has 
failed  to  make  out  even  a  prima  facie  case,  or  where,  if  a  verdict 
were  rendered  for  him,  the  court  would  feel  compelled  to  set  it 
aside.70  This  is  called  a  compulsory  non-suit.  A  compulsory 
non-suit,  however,  does  not  bar  another  action  for  the  same 
cause,  though  the  rule  is  otherwise  in  South  Carolina.71  The 
grounds  for  compulsory  non-suit  in  most  cases  seem  to  be  prac- 
tically the  same  as  those  for  directing  a  verdict,  and  where  they 
are  the  same,  no  reason  is  perceived  why  the  latter,  which  would 
generally  be  conclusive,  should  not  always  be  adopted.  We  have 
no  such  practice  in  Virginia  as  granting  a  compulsory  non-suit 
for  insufficiency  of  the  evidence.  The  court  may  advise  the  plain- 

69.  Southall    v.    Exchange    Bank,    12    Gratt.    315,    16;    Code,    §    3293, 
ante,  §  184. 

70.  Note  24  Am.  Dec.  620-4;  Hill  v.  Rucker,  14  Ark.  706;  Ringgold  v. 
Haron,  1  Cal.  108;  Stuart  v.  Simpson,  1  Wend.   (N.  Y.)   376;  Walker 
v.  .Supple,   54   Ga.   178. 

71.  Cartin   v.    South   Bound   R.   Co.,   43    S.   C.   221,   20   S.    E.   979,   49 
Am.  St.  Rep.  829,  and  note. 


§    318  BILL  OP  PARTICULARS  599 

tiff  to  suffer  a  non-suit,  but  cannot  compel  him  to  do  so.72  A 
defendant,  however,  may  move  to  dismiss  an  action  for  the  fail- 
ure of  the  plaintiff  to  prosecute  it,  but  before  doing  so  he  must 
first  have  a  rule  against  the  plaintiff  to  speed  his  cause,  and  if 
in  answer  to  such  rule  the  plaintiff  appears  in  court  ready  for 
trial,  this  is  a  conclusive  answer  to  the  rule.73 

Withdrawing  a  Juror. — The  antiquated  practice  of  withdraw- 
ing juror,  and  thus  breaking  the  panel,  has  already  been  referred 
to.74  It  formerly  occurred  only  in  criminal  cases,  but  was  sub- 
sequently applied  to  civil  cases.  It  was  usually  adopted  where 
the  plaintiff  was  taken  by  surprise  and  could  not  go  on  with  the 
prosecution,  but  was  subsequently  applied  to  a  like  case  on  the 
part  of  the  defendant.  The  modern  method  of  disposing  of  the 
action  in  case  of  genuine  surprise  at  the  trial  which  would  work 
injustice  if  the  trial  were  permitted  to  go  on,  is  simply  to  dis- 
charge the  jury  and  continue  the  case  without  resorting  to  the 
obsolete  method  of  getting  rid  of  the  jury,  though,  as  a  matter 
of  fact,  it  is  common  even  now  in  the  trial  courts  to  make  the 
entry  that  a  designated  juror  was  withdrawn  and  the  residue  of 
the  jury  from  rendering  a  verdict  discharged.75 

§  318.    Bill  of  particulars.76 

Object  of  the  Statute. — The  object  of  the  statute  is  to  give 
the  opposing  party  more  definite  information  of  the  character 
of  the  claim  or  defence  than  is  generally  disclosed  by  the  decla- 
ration, notice,  or  plea,  and  to  prevent  surprise.77  If  the  decla- 

72.  Ross  v.  Gill,  1  Wash.  89. 

73.  Carter  v.  Cooper,  111  Va.  602,  69  S.  E.  944. 

74.  Ante,   §   252,   p.   475. 

75.  Probably  the  best  discussion  of  this  subject  to  be  found  in  any 
modern   case    is    in    Usborne   v.    Stevenson,    36    Oregon    328,    58    Pac. 
1103,  78  Am.  St.  Rep.  778. 

76.  Section  3249  of  the  Code  is  as  follows:    "In  any  action  or  mo- 
tion, the  court  may  order  a  statement  to  be  filed  of  the  particulars 
of  the  claim,   or  of  the   ground  of  defence;   and,   if  a  party  fail   to 
comply  with  such  order,  may,  when  the  case  is  tried  or  heard,  ex- 
clude evidence  of  any  matter  not  described  in  the  notice,  declaration, 
or  other  pleading  of  such   party,   so   plainly  as  to   give  the   adverse 
party  notice  of  its  character." 

77.  The  bill   of  particulars   itself,   however,   may   be    so   lengthy   as 


MINOR   INCIDENTS  OF   TRIAL  §    318 

ration  or  other  pleading  does  not  present  distinctly  the  grounds  of 
action  or  defence  the  opposing  party  may  be  required  to  file  such 
a  statement  of  the  particulars  as  will  put  the  applicant  for  the 
bill  in  possession  of  the  needed  information.78  When  furnished 
by  a  defendant,  it  is  generally  intended  to  limit  the  scope  and 
operation  of  the  general  issue,  and  to  confine  the  introduction 
of  evidence  to  the  particular  defence  which  the  defendant  has 
disclosed.79  If  the  pleadings  of  either  party  already  sufficiently 
set  forth  the  grounds  of  action  or  defence,  no  bill  of  particulars 
is  necessary.  If  the  bill,  when  filed,  does  not  furnish  the  neces- 
sary information,  the  mode  of  procedure  is  to  object  to  the  bill 
and  ask  the  court  to  require  a  more  specific  statement.  If  a  de- 
fendant pleads  the  general  issue,  but  fails  or  refuses  to  state 
his  ground  of  defence,  when  called  for,  he  may,  nevertheless, 
offer  evidence  to  disprove  the  case  sought  to  be  proved  by  the 
plaintiff.  Section  3249  of  the  Code  Va.,  was  not  intended  to  de- 
prive the  defendant  of  this  right.  His  evidence,  however,  will 
be  restricted  to  the  point  covered  by  his  plea,  to  wit,  a  denial  of 
what  the  plaintiff  would  be  obliged  to  prove  in  order  to  maintain 
his  action,  and  does  not  extend  to  matters  of  confession  and 
avoidance.  The  bill  of  particulars  is  no  part  of  a  declaration  or 
plea,  and  if  not  sufficient  is  not  the  subject  of  demurrer.80 

In  What  Cases  Required. — It  is  said  that  there  is  no  inflexi- 
ble rule  as  to  the  class  of  cases-  in  which  a  statement  of  particu- 
lars of  the  plaintiff's  claim  or  of  the  defendant's  grounds  of  de- 
fence are  required,  but  it  rests  in  the  sound  discretion  of  the  trial 

to  give  .little  information  as  to  what  the  real  ground  of  action  or 
defence  is  (for  example,  in  Ches.  &  O.  R.  Co.  v.  Hoffman,  109  Va. 
44,  63  S.  E.  432,  the  defendant  specified  twenty-five  grounds  of  de- 
murrer to  the  evidence)  but  the  statute  seems  to  have  made  no  pro- 
vision against  a  multiplicity  of  particulars. 

78.  Richmond  v.  Leaker,  99  Va.  6,  37  S.  E.  348;  Tidewater  Quarry 
Co.  v.  Scott,  105  Va.  160,  52  S.  E.  835;   Richmond  v.  Wood,  109  Va. 
75,  63   S.   E.  449. 

79.  Oeters  v.  Knights  of  Honor,  98  Va.  201,  35  S.   E.  356. 

80.  Geo.  Campbell  Co.  v.  Angus,  91  Va.  438,  22  S.  E.  167;  City  Gas 
Co.  of  Norfolk  v.  Poudre,  113  Va.  — ,  74  S.  E.  158;  Whitley  v.  Booker 

Brick  Co.,  113  Va. ,  74  S.  E.  160;  Williams  v.  Simpson,  113  Va. 

,  74  S.  E.  162. 


§    318  BILL  OF  PARTICULARS  601 

court,  subject  to  review  if  plainly  erroneous.81  As  already 
pointed  out,  no  bill  of  particulars  is  necessary  to  be  filed  by  a 
plaintiff  where  the  declaration  gives  the  defendant  complete  no- 
tice of  the  nature  and  character  of  the  plaintiff's  claim.82  In  an 
action  to  recover  damages  for  a  personal  injury,  where  the  dec- 
laration avers  that  it  was  the  duty  of  the  defendant  to  furnish 
suitable  and  reasonable  tools,  etc.,  with  which  to  do  the  work,  it 
is  unnecessary  to  aver  what  the  tools  were,  or  to  furnish  any 
bill  of  particulars  thereof.83  But  in  a  suit  for  damages,  if  a 
more  specific  statement  of  the  element  of  damages  be  desired, 
it  may  be  demanded  under  this  statute.84 

Whether  a  defendant  in  ejectment  can  be  required  to  state 
the  particulars  of  his  defence  is  not  settled  in  Virginia.  Usually 
a  plaintiff  in  ejectment  must  recover,  if  at  all,  upon  the  strength 
of  his  own  title  and  not  on  the  weakness  of  that  of  his  adversary, 
and  it  would  seem  doubtful,  therefore,  whether  such  defendant 
can  be  required  to  state  the  grounds  of  his  defence.  The  ques- 
tion has  been  left  open  in  Virginia.85  But  if  the  defendant  in 
ejectment,  when  called  upon  for  such  bill,  objects  to  filing  it, 
his  objection  must  be  seasonably  made.  It  comes  too  late  after 
verdict,  and  in  no  event  could  the  objection  be  raised  by  a  mo- 
tion in  arrest  of  judgment.86  There  appears  to  be  no  good  rea- 
son why  a  plaintiff  in  ejectment  may  not  be  required  to  file  a 
bill  of  particulars,  if  the  needed  information  is  not  adequately 
set  forth  in  the  declaration.87 

Formality  of  the  Bill. — The  statement  of  particulars  does  not 
constitute  the  issue  to  be  tried,  and  need  not  be  as  formal  or 
precise  as  a  declaration  or  plea.  If  it  is  not  sufficient,  the  court 
should  require  a  sufficient  statement,  and  if  it  is  not  furnished, 
exclude  evidence  of  any  matter  not  described  in  the  notice,  dec- 
laration, or  other  pleading,  so  plainly  as  to  give  the  adverse  par- 

81.  Driver  r.  So.  R.  Co.,  103  Va.  650,  48  S.  E.  1000. 

82.  Richmond  v.   Leaker,  99  Va.   6,   37   S.   E.   348. 

83.  Richmond  Loco.  Works  v.  Ford,  94  Va.  627,  27  S.  E.  509. 

84.  Wood  v.  Amer.   Nat'l   Bank,   100   Va.   306,  40   S.   E.   931. 

85.  Carter  v.  Wood,  103  Va.  68,  72,  48  S.  E.  553. 

86.  Va.-Tenn.  Coal  Co.  v.  Fields,  94  Va.  116,  26  S.  E.  426. 

87.  King  v.  N.  &  W.   R.  Co.,  99  Va.  625,  39  S.  E.  701. 


602  MINOR  INCIDENTS   OF   TRIAL  §    319 

ties  notice  of  -  its  character.88  It  is  sufficient  if  the  particulars 
are  set  forth  in  such  manner  as  will  fairly  and  plainly  give  no- 
tice to  the  adverse  party  of  its  character,  when  the  same  was 
not  so  described  in  the  pleading.89 

Insufficient  Bill. — Where  the  bill  of  particulars  filed  is  insuffi- 
cient, the  party  should  be  required  to  file  a  new  or  additional  bill 
that  is  sufficient,  and  upon  failure  to  do  so,  his  evidence  should 
be  excluded  on  matters  not  otherwise  sufficiently  described  in  his 
pleadings.  The  objection  to  the  bill  should  be  made  before  the 
trial  begins.90  If  the  objection  is  overruled,  and  it  is  intended 
to  be  relied  upon  in  the  appellate  court,  a  proper  bill  of  exception 
should  be  taken,  but  if  the  orders  of  the  court  show  that  the 
plaintiff  moved  the  court  to  require  the  defendant  to  file  a  state- 
ment of  his  grounds  of  defence,  but  that  the  motion  was  over- 
ruled and  the  plaintiff  excepted,  this  is  sufficient  without  any  bill 
of  exception.91 

If  a  defendant,  in  an  action  of  trespass  on  the  case,  has  simply 
pleaded  the  general  issue  of  not  guilty,  and  fails  to  comply  with 
an  order  requiring  him  to  specify  his  grounds  of  defence,  it 
seems  that  he  may  still  be  allowed  to  introduce  evidence  con- 
troverting the  plaintiff's  claim,  as  his  plea  gives  notice  thereof.92 

§  319.    Second  trial. 

Where  a  trial  has  been  had  of  an  action  at  law  and  a  verdict 
rendered  in  favor  of  the  plaintiff,  which  is  set  -aside  on  the  mo- 
tion of  the  defendant  on  the  ground  that  it  is  contrary  to  the 
evidence,  the  plaintiff  should  take  a  proper  bill  of  exception  to 
the  action  of  the  court  in  setting  aside  the  verdict,  in  which  all 
the  evidence  should  be  set  out,  the  ruling  of  the  court  on  the 
motion,  and  the  objection  thereto.  Afterwards  when  the  new 
(second)  trial  is  to  be  had,  two  courses  are  open  to  the  plaintiff: 
( 1 )  he  may  go  on  and  produce  his  evidence,  and  go  through  the 

88.  Columbia  Accident  Ass'n  v.  Rockey,  93  Va.  678,  25  S.  E.  1009. 
See,  also,  ante,  §  73,  p.  100. 

89.  Tidewater  Quarry  Co.  v.  Scott,  105  Va.  160,  52  S.  E.  835. 

90.  N.  &  W.  R.  Co.  v.  Carter,  91  Va.  587,  22  S.  E.  517. 

91.  Driver  v.  So.  R.  Co.,  103  Va.  650,  49  S.  E.  1000. 

92.  See  cases  cited  in  note  80  to  this  section. 


§  319  SECOND  TRIAL  603 

trial  from  start  to  finish  just  as  he  did  on  the  first  trial,  or 
(2)  if  he  thinks  that  on  the  first  trial  he  has  made  as  strong  a 
case  as  he  could  possibly  make  by  his  evidence  on  the  second 
trial,  he  may  simply  decline  to  introduce  any  evidence  at  the 
second  trial,  and  allow  a  verdict  to  be  rendered  for  the  defend- 
ant, which  verdict  he  should  move  to  set  aside  because  contrary 
to  the  evidence,  and  take  a  bill  of  exception  to  the  opinion  of  the 
court  overruling  his  latter  motion.  The  object  and  purpose  of 
this  proceeding  is  to  avoid  the  trouble  and  expense  of  a  second 
trial,  and  also  probably  to  cut  off  any  new  evidence  which  the 
defendant  may  in  the  meantime  have  gotten  to  defeat  his  cause. 
It  is  provided  by  statute  in  Virginia  that  if  there  have  been  two 
trials  at  law,  and  proper  bills  of  exception  have  been  taken,  the 
appellate  court  shall,  on  a  writ  of  error,  review  the  proceedings 
on  the  first  trial  first,  and  if  it  finds  that  error  was  committed 
in  setting  aside  the  first  verdict,  it  shall  set  aside  all  the  proceed- 
ings subsequent  to  that  verdict,  and  enter  up  judgment  on  the 
verdict.93  This  is  a  practice  frequently  resorted  to. 

93.  Code,  §  3484. 


CHAPTER  XU. 
JUDGMENTS. 

§  320.  Scope'  of   chapter. 

§  321.  Judgments  as  liens. 

§  322.  Commencement  of  the  lien. 

Date   of  commencement. 

Time  for  docketing. 

Order  of  satisfaction. 
§  323.  Duration  of  lien. 
§  324.  Docketing. 

§  325.  Judgments  against  executors,   administrators  and  trustees. 
§  326.  Claim   of  homestead   against  judgments. 
§  327.  Instruments  having  force  of  judgments. 
§  328.  Death   of  debtor. 
§  329.  Priority  of  judgments  inter  se. 
§  330.  Judgments  of  federal  courts. 
§  331.  Foreign  judgments. 
§  332.  Collateral  attack. 
§  333.  Void  judgments. 
§  334.  Satisfaction  of  judgments. 

§  335.  Order  of  liability  of  lands  between  different  alienees. 
§  336.  Enforcement   of  judgments. 

§  320.    Scope  of  chapter. 

Judgments  may  be  either  interlocutory  or  final.  Final  judg- 
ments may  be  for  specific  property,  real  or  personal,  or  for 
money.  As  damages  are  measured  by  a  money  standard,  judg- 
ments for  money,  as  used  in  this  chapter,  will  include  damages. 
The  following  treatment  will  be  limited  to  final  judgments  for 
money.  A  "judgment,"  as  used  in  this  chapter,  denotes  the  final 
award  and  determination  by  any  court  of  competent  jurisdiction, 
law  or  equity,  directing  the  payment  of  money.  By  statute  in 
Virginia,  it  is  immaterial  whether  the  money  be  directed  to  be 
paid  to  an  individual  or  into  a  court,  or  a  bank,  or  other  place  of 
deposit.1 

1.  Code,   §§   3557,   3558. 


§    321  JUDGMENTS  AS  LIENS  605 

§  321.    Judgments  as  liens. 

Judgments  were  not  liens  on  land  at  common  law,  except  upon 
debts  due  the  King.  By  statute  in  England,  substantially  adopted 
in  Virginia,  a  new  execution  was  provided,  the  writ  of  elegit, 
by  which  a  moiety  of  the  lands  of  the  debtor  could  be  subjected 
to  the  satisfaction  of  the  judgment.  "The  statute,  however,  did 
not  in  express  terms  give  a  lien  on  the  land.  It  provided  for  the 
writ  and  prescribed  the  form  for  it.  By  its  terms  the  officer  was 
required  to  deliver  to  the  creditor  all  the  goods  and  chattels  of 
the  debtor,  saving  the  oxen  and  beasts  of  his  plow,  and  also 
a  moiety  of  all  the  lands  and  tenements  whereof  the  debtor,  at 
the  day  of  obtaining  his  judgment,  was  seized,  or  at  any  time 
afterwards,  by  reasonable  price  and  extent,  to  have  and  to  hold 
the  said  goods  and  chattels  to  the  creditor  as  his  own  proper 
goods  and  chattels,  and  the  said  moiety  as  his  freehold,  to  him 
and  his  assigns  until  thereof  the  judgment  be  satisfied  ('until  he 
shall  have  levied  thereof  the  debt  and  damages  aforesaid'). 

"It  was  by  judicial  construction  given  to  this  writ  that  the 
judgment  was  said  to  be  a  lien  on  the  land.  The  lien  resulted  from 
the  mandate  of  the  writ  to  deliver  to  the  creditor,  by  reasonable 
price  and  extent,  a  moiety  of  all  the  lands  and  tenements  of  the 
debtor  whereof  he  was  seised  at  the  date  of  the  judgment,  or  at 
any  time  afterwards.  The  lien  was  an  incident  of  the  writ  and 
depended  for  its  existence  and  continuance  upon  the  capacity  to 
sue  out  the  writ.  As  long  as  this  capacity  lasted,  even  although 
revived  after  being  temporarily  suspended,  the  lien  continued,  and 
whenever  it  finally  ceased  the  Hen  which  was  dependent  upon  it 
was  extinguished. 

"As  the  mandate  of  the  writ  extended  to  all  the  lands  and 
tenements  of  which  the  debtor  was  seized  at  the  date  of  the  judg- 
ment, or  at  any  time  afterwards,  it  was  by  force  of  this  mandate 
also  that  the  lien  of  the  judgment  over-reached  all  subsequent 
conveyances,  although  made  to  purchasers  for  valuable  consider- 
ation without  notice  of  the  judgment,  and  extended  to  all  the 
lands  of  the  debtor  within  the  jurisdiction  of  the  state."2 

2.  Borst  v.  Nalle,  28  Gratt.  423,  428;  Coombs  v.  Jordan,  3  Eland's 
Ch.  284,  22  Am.  Dec.  236;  1  Black  on  Judgments,  §§  397,  398. 


JUDGMENTS  §    321 

In  1843  the  legislature  passed  an  act  for  the  protection  of  sub- 
sequent purchasers  for  value  and  without  notice,  requiring  judg- 
ments to  be  docketed  in  order  to  affect  such  purchasers.  With 
this  exception,  the  lien  of  the  judgment  continued  in  all  respects 
as  has  been  hereinbefore  stated  until  the  Revisal  of  1849.  Up  to 
that  time  the  lien  was  a  mere  incident  of  the  writ  of  elegit;  but, 
by  the  Revisal  of  1849,  judgments  were  made  a  direct,  specific, 
legal  lien  on  lands,  and  equity  was  given  jurisdiction  for  the  en- 
forcement thereof.  The  remedy  in  equity  was  thereafter  pre- 
ferred in  practice,  and  the  elegit  fell  into  disuse  and  was  finally 
abolished.  Now,  in  Virginia,  the  judgment  is,  by  the  terms  of 
the  statute,  a  fixed,  definite,  statutory,  legal  lien,  "on  all  the  real 
estate  of,  or  to  which  such  person  is,  or  becomes,  possessed  or 
entitled,  at  or  after  the  date  of  such  judgment."3  The  estate  of 
the  judgment  debtor  may  be  legal  or  equitable,  in  fee  or  for  life. 
An  equity  of  redemption  is  an  estate  in  land  and  subject  to  the 
lien  of  a  judgment,4  and,  of  course,  when  a  contingent  remainder 
becomes  vested  it  is  bound  by  judgments  against  the  owner,5  but 
a  term  of  years  is  a  chattel  real,  liable  to  the  lien  of  a  fi.  fa. 
and  is  not  such  an  estate  in  land  as  is  bound  by  a  judgment. 
Where  the  recording  acts  do  not  interfere,  the  judgment  creditor 
can  never  subject  any  greater  interest  than  the  judgment  debtor 
has.6  If,  however,  there  should  be  an  exchange  of  land,  and 
one  of  the  parties  should  fail  to  record  his  deed,  a  judgment 
against  the  other,  who  had  recorded  his  deed,  will  bind  both 
tracts.7  A  mere  transitory  seizin  of  land,  however,  where  the 
land  is  reconveyed  to  secure  the  purchase  price  does  not  vest  in 
the  grantee  such  interest  in  the  land  as  will  be  liable  to  judgments 
against  him  in  preference  to  the  debt  secured;  for  example,  if 
land  be  conveyed  to  Smith  and,  at  the  same  time,  and  as  part  and 
parcel  of  the  same  transaction  the  land  is  reconveyed  by  Smith 
to  a  trustee  to  secure  the  purchase  money,  the  trust  creditor  has 
the  preference,  and  the  mere  transitory  seizin  of  Smith  is  not  of 

3.  Code,  §  3567. 

4.  Michaux  v.  Brown,  10  Gratt.  612,  619. 

5.  Wilson  v.  Langhorne,  102  Va.  631,  47  S.  E.  871. 

6.  Dingus  v.  Minn.  Imp.  Co.,  98  Va.  737,  37  S.   E.  353. 

7.  Price  v.  Wall,  97  Va.  334,  33  S.  E.  599. 


§  322 


COMMENCEMENT  OF  THE  UEN 


607 


such  nature  as  to  give  a  judgment  against  him  priority  over  the 
trust  deed.8 

A  judgment  creditor,  whose  judgment  is  duly  docketed,  has  the 
right  to  subject  the  land  of  the  judgment  debtor  to  the  pay- 
ment of  his  judgment  in  the  condition  in  which  he  finds  the 
land  at  the  time  of  enforcement,  without  diminution  or  allow- 
ance for  betterments  placed  upon  it  subsequent  to  the  docketing 
of  the  .judgment.  The  statute  on  the  subject  of  improvements 
has  no  application  to  such  case.  If,  after  the  judgment  is  docketed, 
the  debtor  sells  the  land  to  a  purchaser  for  value,  who  puts  val- 
lable  improvements  on  it,  the  creditor  is  entitled  to  subject  the 
land  and  the  improvements  to  the  payment  of  his  judgment,  as 
the  purchaser  has  constructive  notice  of  the  existence  of  the 
lien.9 

§  322.    Commencement  of  the  lien. 

At  common  law,  a  judgment  rendered  in  court  related  back  to 
ic  first  moment  of  the  day  on  which  the  court  actually  began  its 
term,  and  this,  until  comparatively  recently,  continued  to  be  the 
law  in  Virginia.     There  have  been  many  changes  in  the  law  in 
rirginia,  both  as  to  the  time  of  the  commencement  of  the  lien, 
ind  the  time  of  docketing,  as  against  subsequent  purchasers  for 
lue  without  notice,  since  from  July  1,  1850.     These  changes 
lay  be  briefly  tabulated  as  follows : 

DATE  OF  COMMENCEMENT  OF  LIEN. 
/.    Judgments  Rendered  in  Court: 

1850,  July  1,  to  1902,  March  29: 

The  lien  dates  from  the  first  day  of  term  at  which  it  is  ren- 
iered,  if  there  could  have  been  a  judgment  on  that  day ;  otherwise 
from  the  date  of  rendition.10 

1902,  March  29,  to  date : 

The  lien  dates  from  the  date  of  judgment.  The  lien  of  a 
judgment  shall  in  no  case  relate  back  to  a  day  or  time  prior  to 

8.  Straus  v.  Bodeker,  86  Va.  543,  10  S.  E.  570. 

9.  Nixdorf  v.  Blount,  111  Va.  127,  68  S.  E.  258. 

10.  Code  1849,  Ch.  186,  §  6;  Withers  v.   Carter,  4  Gratt.  407,   made 
statutory  May  1,   1888.     Code,   §§   3567,  3568. 


JUDGMENTS  §    322 

that  on  which  the  judgment  was  rendered.     It  would  seem  that 
judgments  in  court  relate  to  first  moment  of  day  of  rendition.11 

2.   Judgments  or  Decrees  in  Vacation: 
1850,  July  1,  to  1898,  July  1 : 
The  lien  dates  from'  the  first  moment  of  the  day  of  rendition.12 

1898,  July  1,  to  date: 

The  lien  dates  from  the  time  of  day  of  rendition.  If  more 
than  one  judgment  is  rendered  on  the  same  day,  they  take  prior- 
ity according  to  time  of  day  each  is  rendered,  unless  all  are  ren- 
dered at  once,  and  then  they  date  from  the  time  of  day  the  first 
judgment  is  rendered.  The  lien  does  not  relate  back  to  any  earlier 
time.13 

11.  Code,  §  3567. 

12.  Hockman  v.  Hockman,  93  Va.  455,  25  S.  E.  534. 

13.  Acts    1897-'8,    pp.    507,    508,    amending   Code,    §§    3567    and    3283. 
Acts  1901-'2,  p.  427,  amending  §  3567.     These  sections,  as   amended, 
are  as  follows: 

Sec.  3567:  "Every  judgment  for  money  rendered  in  this  State 
heretofore  or  hereafter  against  any  person  shall  be  a  lien  on  all  the 
real  estate  of  or  to  which  such  person  is  or  becomes  possessed  or 
entitled  at  or  after  the  date  of  such  judgment.  When  more  than 
one  judgment  or  decree  is  confessed  or  entered  in  vacation  on  the 
same  day,  they  shall  have  priority  as  among  themselves  in  the  or- 
der with  respect  to  the  time  when  they  are  respectively  confessed  or 
received  for  record  in  the  clerk's  office  of  the  court  entering  the 
same;  provided,  that  when  several  judgments  are  confessed  to- 
gether they  shall  all  be  deemed  to  have  been  confessed  as  of  the 
time  the  first  was  confessed,  and  the  clerk  shall  enter  such  time  on 
the  margin  of  his  order  book.  The  lien  of  a  judgment  shall  in  no 
case  relate  back  to  a  day  or  other  time  prior  to  that  on  or  at  which 
the  judgment  was  rendered.  This  section  is  qualified  by  section 
3649  and  the  three  following  sections." 

Sec.  3283:  "In  any  suit  a  defendant  may,  in  vacation  of  the  court, 
and  whether  the  suit  be  on  the  court  docket  or  not,  confess  a  judg- 
ment in  the  clerk's  office,  for  so  much  principal  and  interest  as  the 
plaintiff  may  be  willing  to  accept  a  judgment  or  decree  for.  The 
same  shall  be  entered  of  record  by  the  clerk  in  the  order  or  minute 
book,  and  be  as  final  and  as  valid  as  if  entered  in  court  on  the  day 
of  such  confession,  except  merely  that  the  court  shall  have  such 
control  over  it  as  is  given  by  §  3293.  And  the  said  clerk  shall  enter 


§  322  COMMENCEMENT  OF  THE  UEN  609 

TIME  FOR  DOCKETING  AS  AGAINST  SUBSEQUENT  PURCHASERS  FOR 
VALUE  AND  WITHOUT  NOTICE. 

1850,  July  1,  to  1872,  March  13.— Within  one  year  after  date  of 
judgment,  or  90  days  before  the  conveyance.14 

1872,  March  13,  to  1873,  March  28.— Within  90  days  after  date 
of  judgment,  or  30  days  before  conveyance.15 

1873,  March  28,  to  1888,  May  1.— Within  60  days  after  date  of 
judgment,  or  within  15  days  before  conveyance.16 

1888,  May  1,  to  1902,  March  29.— Within  20  days  after  date  of 
judgment,  or  within  15  days  before  conveyance.17 

1902,  March  29,  to  date  (1912).— Not  a  lien  at  all  "until  and 
except  from  the  time  it  is  duly  docketed  in  the  clerk's  office 
of  the  county  or  corporation  wherein  such  real  estate  may  be."18 

ORDER  OF  SATISFACTION  OF  LIENS. 

Generally  judgments  are  to  be  satisfied  according  to  their  re- 
spective priorities,  but  if  several  judgments  are  rendered  against 
the  same  person  at  one  term  all  will  stand  pari  passu  if  ready  for 
hearing  and  on  the  docket  at  the  commencement  of  the  term. 
Such  judgments  shall  take  priority  over  judgments  by  confession 
entered  at  the  same  term,  and  over  judgments  rendered  at  the 

upon  the  margin  of  such  book  opposite  where  the  said  judgment  or  de- 
cree is  entered,  the  date  and  time  of  the  day  at  which  the  same  was 
confessed;  and  the  lien  of  the  said  judgment  or  decree  shall  run  only 
from  the  time  of  day  of  the  confession." 

The  object  of  these  amendments  was  to  overrule  Hockman  v.  Hock- 
man,  supra. 

14.  Code   1849,   Ch.   186,   §    8. 

15.  Acts   1871-'2,   p.   237. 

16.  Acts   1872-'3,  p.  242. 

17.  Code  1887,  §  3570. 

18.  Acts  1901-'2,  p.  427,  Code  (1904),  §  3570,  as  follows: 

"No  judgment  shall  be  a  lien  on  real  estate  as  against  a  pur- 
chaser thereof  for  valuable  consideration  without  notice,  until  and 
except  from  the  time  that  it  is  duly  docketed  in  the  clerk's  office  of 
the  county  or  corporation  wherein  such  real  estate  may  be. 

-39 


610  JUDGMENTS  §    322 

same  term  in  any  proceeding  by  motion   instituted   during  the 
term.19 

Under  the  provisions  of  §  3567  of  the  Code  every  judgment 
is  made  a  lien  from  the  date  of  such  judgment,  which  means  the 
first  moment  of  the  day  on  which  the  judgment  is  rendered ;  but 
this  section  must  be  read  in  connection  with  §  3283  of  the 
Code,  declaring  that  the  lien  of  a  judgment  or  decree  rendered 
in  vacation  upon  confession,  shall  run  only  from  the  time  of  day 
of  the  confession.  If,  therefore,  a  judgment  be  confessed  on  the 
day  that  a  court  convenes,  but  before  the  actual  session  of  the 
court,  and  a  judgment  be  rendered  in  court  on  the  same  day,  the 
judgment  rendered  in  court  has  priority,  as  judgments  by  confes- 
sion "run  only  from  time  of  day  of  confession,"  while  judgments 
rendered  in  court  are  liens  from  the  first  moment  of  the  day  of 
rendition.  Under  §  3576,  judgments  rendered  in  court  are  given 
priority  over  judgments  by  confession  entered  at  the  same  term, 
and  over  judgments  rendered  at  the  same  term  in  any  proceeding 
by  motion  instituted  during  the  term.  As  a  proceeding  by  motion 
under  §  3211  of  the  Code  is  not  deemed  to  have  been  instituted 
until  the  notice,  duly  executed,  is  returned  to  the  clerk's  office,20  a 
judgment  rendered  on  a  notice  given  before  the  term  began,  but 
not  returned  until  after  the  term  had  commenced,  would  be  sub- 

19.  Acts   1901-'2,  p.  427,   Code   (1904),  §   3576,  as   follows: 

"The  liens  of  judgments  against  the  same  person  shall  attach  to 
all  his  real  estate  liable  thereto  under  §  3567  in  the  order  of  the 
dates  respectively  of  said  judgments,  and  the  judgments  shall  be 
made  payable  thereout  in  the  same  order;  and  where  there  are 
rendered  at  the  same  term  of  court  two  or  more  judgments  against 
the  same  person  in  suits  or  in  proceedings  by  motion,  both  or  all 
of  which  were  matured,  at  the  rules  or  otherwise,  and  were  upon 
the  docket  at  the  commencement  of  the  term,  there  shall  be  no 
priority  between  or  among  them,  but  said  judgments  shall  be  paid 
ratably  out  of  the  real  estate  upon  which  they  are  liens.  Such 
judgments  shall  take  priority  over  judgments  by  confession  en- 
tered at  the  same  term,  and  over  judgments  rendered  at  the  same 
term  in  any  proceeding  by  motion  instituted  during  the  term.  An 
extract  of  any  judgment  shall,  upon  motion,  be  granted  to  any  party 
interested  immediately  upon  its  rendition,  subject  to  the  future  ac- 
tion of  the  court  rendering  the  same." 

20.  Furst   v.    Banks,    101   Va.   208,   43    S.    E.   360. 


§    323  DURATION   OF  LIEN  611 

ordinate  to  judgments  rendered  during  the  term.  Under  the  old 
law  in  Virginia,  the  fraction  of  a  day  rule  was  so  far  modified 
as  to  give  validity  to  a  judgment  confessed  on  the  day  the  court 
began  but  before  the  actual  session  of  the  court.  It  was  held  to 
be  a  judgment  in  vacation.  It  was  not  necessary  to  decide,  nor 
was  it  decided,  whether  it  would  have  priority  over,  or  stand 
pari  passu  with,  judgments  rendered  during  the  term.21  The 
common  law  fiction  of  relation  back  to  the  first  day  of  the  term 
was  restricted,  however,  to  cases  in  which  the  judgment  might 
have  been  rendered  on  that  day.22  This  was  made  statutory  in 
Virginia  May  1,  1888,  by  §  3568  of  the  Code,  which  has  been 
recently  repealed.  One  of  the  chief  reasons  for  making  judg- 
ments relate  back  to  the  first  day  of  the  term  was  to  put  all 
suitors  on  the  same  footing.  Inasmuch  as  all  cases  ready  for 
hearing  might  not  be  tried  on  the  first  day  of  the  court,  through 
no  fault  of  the  suitor,  it  was  deemed  proper  that  all  should  stand 
on  the  same  footing. 

The  time  of  the  commencement  of  the  lien  of  a  judgment  is  reg- 
ulated, of  course,  by  statute  in  each  State.23 

§  323.    Duration  of  lien. 

This,  of  course,  is  statutory,  and  to  be  determined  by  the  law 
of  the  particular  State.  In  Virginia  the  judgment  is  a  lien  and 
may  be  enforced  as  such  as  long  as  you  can  issue  a  fi.  fa.  thereon, 
or  revive  by  scire  facias,  or  sue  on  it.  This  is  ten  years  at  the 
least  from  the  date  of  the  judgment,  and,  if  a  fi.  fa.  has  been  issued 
and  no  return  has  been  made  thereon  by  an  officer,  the  lien  con- 
tinues for  ten  years  from  the  return  day  of  the  fi.  fa.24  If  any 
return  by  an  officer  has  been  made  upon  the  fi.  fa.  the  lien  con- 
tinues for  twenty  years  from  the  return  day  of  the  fi.  fa.,  except 
that,  if  the  judgment  debtor  dies,  the  judgment  must  be  revived, 

21.  Brown  v.  Hume,  16  Gratt.  456. 

22.  Withers  v.    Carter,  4  Gratt.  407;  1    Black  on    Judgments,  §  442. 

23.  See  1  Black  on  Judgments,  §  443,  for  summary  of  statutes. 

24.  If  a  fi.  fa.  be  made  out  and  simply  marked  "to  lie,"  and  kept  in 
the  clerk's  office,  this  is  sufficient  to  extend  the  life  of  the  judgment 
to  ten  years  from  the  return  day  of  that  fi.  fa.     Davis  v.  Roller,  106 
Va.  46,  55   S.   E.  4. 


612  JUDGMENTS  §    324 

or  a  suit  be  brought  to  enforce  it,  within  five  years  from  the 
qualification  of  his  personal  representative.25  The  judgment  may 
be  thus  kept  alive  perpetually  by  the  issue  of  successive  execu- 
tions within  the  statutory  period.26  If  an  execution 
has  been  issued  in  contravention  of  the  express  agreement  of 
the  parties  and  has  been  returned,  it  will,  nevertheless,  extend  the 
life  of  the  judgment,  unless  set  aside  in  a  direct  proceeding  for 
that  purpose.  The  execution  is  not  a  void  execution,  and  cannot 
be  collaterally  assailed.  The  agreement  is  personal  between  the 
parties  and  their  privies,  and  cannot  be  enforced  by  third  per- 
sons.27 

If  the  scire  facias  to  revive  the  judgment  is  not  sued  out  until 
after  the  judgment  has  become  barred  by  the  statute  of  limita- 
tions, and  the  debtor  refuses  to  plead  the  statute  and  permits  the 
judgment  to  be  revived,  the  creditor  would  probably  not  be  per- 
mitted under  the  Virginia  holding  to  override  the  rights  of 
purchasers  and  judgment  creditors  whose  rights  had  become 
fixed  prior  to  such  revival.  The  question,  however,  is  not  free 
from  difficulty.28 

§  324.    Docketing. 

The  object  and  purpose  of  docketing  judgments  is  to  give  notice 
to  subsequent  purchasers  for  value  and  without  notice.  The 
Virginia  statute  has  no  application  to  creditors,  but  applies  solely 
to  subsequent  purchasers,  and  hence  docketing  is  only  required 
for  protection  against  such  purchasers.29  Another  important  pro- 
vision of  the  Virginia  statute  is,  that  a  judgment  shall  not  be 
deemed  to  be  docketed  unless  it  is  indexed.30  The  rule  is  other- 
wise as  to  deeds.  Generally,  initials  are  allowed  to  be  used  instead 
of  the  full  names.  Whether  the  omission  of  a  middle  name,  or 

25.  Code,  §  3577;  Spencer  v.  Flanary,  104  Va.  395,  51  S.  E.  849; 
Ackiss  v.  Satchell,  104  Va.  700,  52  S.  E.  378;  5  Va.  Law  Reg.  672. 
As  to  what  is  a  sufficient  return  on  a  fi.  fa.,  see  post,  §  346. 

28.  Ackiss  v.  Satchell,  supra. 

27.  Baer  v.  Ingram,  99  Va.  200,  37  S.  E.  905;  Fulkerson  v.  Taylor, 
100  Va.  426,  41   S.   E.  863. 

28.  See,  ante,  §  223. 

29.  Code,  §  3570. 

30.  Code,  §  3561. 


§    324  DOCKETING  613 

initial,  or  a  mistake  therein,  will  vitiate  the  docketing  is  largely 
dependent  upon  whether  what  is  actually  used  is  sufficient  to  give 
notice  to  a  reasonable  man.31  In  Virginia,  it  has  been  held  that 
docketing  and  indexing  a  judgment  against  Mrs.  John  Smith  is 
not  notice  of  a  judgment  against  Mary  Smith,  though  she  be  in 
fact  the  wife  of  John  Smith.32  It  has  been  made  a  question 
whether  judgments  in  favor  of  the  Commonwealth  must  be  dock- 
eted, as  the  general  rule  is  that  statutes  do  not  embrace  the  State 
unless  expressly  named.33  The  statute  in  Virginia  requires  at- 
torneys representing  the  commonwealth  to  cause  such  judgments 
to  be  docketed,  but  does  not  declare  the  effect  of  failure  to  docket. 
It  is  probably  necessary.34 

Docketing  judgments  in  a  county  out  of  which  a  city  is  sub- 
sequently carved  is  not  constructive  notice  of  such  judgment  to 
a  purchaser  for  value  of  land  acquired  by  the  judgment  debtor 
several  years  after  the  incorporation  of  the  city.  In  order  to 
affect  such  purchaser  the  judgment  must  be  docketed  in  the  city 
either  within  twenty  days  after  the  date  of  the  judgment,  or  fifteen 
days  before  the  conveyance  of  such  real  estate  to  the  purchaser.36 

The  proceeding  by  scire  facias  to  revive  a  judgment  is  not  a 
new  suit  but  a  continuation  of  the  old  one.  Its  object  is  to  ob- 
tain execution  of  a  judgment  which  has  become  dormant  by  lapse 
of  time,  and  the  order  of  revival  when  made  is  simply  that  the 
plaintiff  may  have  execution  for  the  debt  and  the  costs.  Such 
order  is  frequently  spoken  of  as  a  judgment  on  a  scire  facias,  but 

31.  See  interesting  discussion,  8  Va.  Law  Reg.  714. 

32.  Bankers'  Loan  &  Investment  Co.  v.  Blair,  99  Va.  606,  39  S.  E. 
231.     In  Fulkerson  v.  Taylor,  100  Va.  426,  41  S.  E,  863,  it  was  held 
that  the  production  of  an  abstract  of  a  judgment  which  says  nothing 
as  to  docketing  is  no  proof  of  the  docketing,  if  that  fact  be  an  issue 
in  the  case.     It  was  also  held  that  "same,"  written  under  the  judg- 
ment  debtor's    name   in   the   index   and    giving   reference   to   another 
page  of  the  judgment  docket,  was  a  sufficient  indexing  of  the  judg- 
ment found  on  that  page. 

33.  For  a   discussion   of  this   subject,   see   7   Va.   Law    Reg.   817,   in 
which  the  writer  arrives  at  the  conclusion  that  such  judgments  must 
be  docketed. 

34.  Code,  §  3565. 

35.  Wicks  v.  Scull,  102  Va.  690,  46  S.  E.  297.     Since  this  case  was 
decided  the  statute  as  to  docketing  has  been  materially  changed,  as 
pointed  out,  ante,  §  322. 


614  JUDGMENTS  §§  325-326 

such  order  of  revival  is  not  a  judgment  which  can  be  docketed, 
and  the  docketing  of  such  order,  frequently  called  a  judgment  on 
the  scire  facias,  is  not  constructive  notice  of  the  original  judg- 
ment.36 

§  325.    Judgments  against  executors,  administrators  and 
trustees. 

The  judgment  docket  frequently  contains  judgments  against 
defendants  with  the  words  "administrator,"  "executor,"  or  "trus- 
tee," following.  Whether  or  not  such  judgments  are  personal 
judgments  against  the  fiduciary  can  only  be  ascertained  by  an 
examination  of  the  order  book  of  the  court  rendering  the  judg- 
ment or  decree.  If  the  judgment  or  decree  simply  adjudges  that 
the  plaintiff  recover  against  A.  B.,  executor,  administrator,  trus- 
tee, or  the  like,  it  is  a  personal  judgment  binding  the  real  estate 
of  A.  B.,  and  the  added  words  are  simply  descriptio  personal 
If  it  is  intended  that  a  judgment  or  decree  shall  be  against  a 
defendant  in  a  representative  capacity,  then  the  judgment  should 
be  that  the  defendant  do,  out  of  the  estate  of  his  intestate,  or  tes- 
tator, as  the  case  may  be,  if  so  much  he  hath,  pay  the  amount. 
Such  a  judgment,  however,  cannot  create  as  a  lien  on  the  estate 
of  the  decedent.  All  liens  on  his  estate  must  be  created  in  his  life- 
time, or  by  operation  of  some  statute.  No  judgment  against  his 
representative  after  his  death  can  create  any  lien  on  his  estate. 

§  326.    Claim  of  homestead  against  judgments. 

Although  a  right  to  claim  a  homestead  accrues  after  judgment, 
if  the  homestead  has  not  been  waived,  it  prevails  over  the  judg- 
ment under  the  homestead  laws  of  Virginia.38  The  lien  of  a 
judgment,  where  homestead  has  not  been  waived,  does  not  attach 
to  the  homestead  at  all  until  the  expiration  of  the  homestead 
period,  at  which  time  the  judgments  attach  (in  Virginia)  to  such 
of  the  real  estate  claimed  as  a  homestead  as  remains,  if  any,  in 

36.  Lavell  v.  McCurdy,  77  Va.  763;  White  v.  Palmer,   110  Va.  490, 
66   S.   E.  44. 

37.  1   Black  Judgments,  §  214;   Lincoln  v.  Stern,  23  Gratt.   816,  822; 
Fulkerson  v.  Taylor,  100  Va.  426,  41  S.  E.  863. 

38.  Oppenheim  v.  Myers,  99  Va.  582,  39  S.  E.  218. 


§§    327-329  PRIORITY  OF  JUDGMENTS   INTER   SE  615 

the  order  of  the  priority  of  their  dates.39  The  claim  of  a  home- 
stead, however,  does  not  suspend  the  running  of  the  statute  of 
limitations  as  to  the  judgment,  and  the  creditor  must  keep  his 
judgment  alive  in  the  method  prescribed  by  law,  else,  if  it  is 
barred  by  the  act  of  limitations  when  the  homestead  period  ceases, 
it  cannot  be  asserted  against  any  of  the  property  set  apart 
as  a  homestead.40 

§  327.    Instruments  having  the  force  of  judgments. 

Delivery  bonds  in  Virginia  have  the  force  of  judgments  when 
duly  returned  and  recorded.  The  same  is  true  of  recognizances, 
but  each  must  be  docketed  as  required  by  law,  as  against  sub- 
sequent purchasers  for  value  and  without  notice.41 

§  328.    Death  of  debtor. 

In  Virginia,  West  Virginia,  Massachusetts,  Florida,  Alabama, 
Texas,  Kentucky  and  other  States,  a  judgment  rendered  against 
the  defendant,  who  dies  after  service  of  process  but  before  judg- 
ment, and  whose  death  has  not  been  suggested  on  the 
record,  is  not  void  but  voidable  only.  It  is  valid  unless  and 
until  set  aside  in  a  direct  proceeding  for  that  purpose.  It  cannot 
be  assailed  collaterally.42  The  same  is  true  in  Virginia  of  a  de- 
cree in  a  suit  in  chancery  to  subject  lands  of  the  defendant  to 
the  lien  of  a  judgment,  although  the  death  of  th<e  defendant  has 
been  suggested  on  the  record  and  the  suit  not  revived  against  his 
heirs.48 

§  329.    Priority  of  judgments  inter  se. 

As  among  judgment  creditors  themselves,  the  priorities  are 
determined  solely  by  the  dates  of  the  judgments,  or  the  times 
at  which  they  are  recovered,  regardless  of  docketing.  Judgments 

39.  Code,   §§  3649,  3576;   Williams  v.   Watkins,  92  Va.   680,  685,   24 
S.  E.  223. 

40.  Ackiss  v.  Satchell,  104  Va.  700,  52  S.  E.  378. 

41.  Code,  §§  3580,  3626. 

42.  Robinett  v.  Mitchell,  101  Va.  762,  45  S.  E.  287;  Kink  v.  Burdett, 
28  W.   Va.   601;   Black  on  Judgments,   §§   199,   200. 

43.  Alvis  v.  Saunders,  113  Va.  208,  74  S.  E.  153. 


616  JUDGMENTS  §    330 

recovered  at  the  same  time  stand  pa<ri  passu,  but  if  confessed  at 
different  times  on  the  same  day  in  vacation,  priority  is  determined 
by  the  time  of  day  at  which  they  are  confessed.  The  order  in 
which  the  judgments  are  docketed  is  wholly  immaterial.  It  is 
not  necessary  to  docket  a  judgment  as  against  another  judgment 
in  order  to  preserve  its  priority.  It  is  to  be  particularly  observed 
that  docketing  of  judgments  is  only  required  against  subsequent 
purchasers  for  value  and  without  notice.  If  there  has  been  no 
alienation  of  the  land  by  the  debtor,  who  owns  land  in  Rockbridge 
County,  a  judgment  in  the  City  of  Richmond,  on  May  1,  1912,  has 
priority  over  a  judgment  in  Rockbridge  on  June  1,  1912,  although 
the  Richmond  judgment  is  never  docketed  in  Rockbridge  County, 
and  the  judgment  in  Rockbridge  is  duly  docketed.  If  a  judgment 
debtor  acquires  real  estate  years  after  a  number  of  judgments 
have  been  recovered  against  him,  they  are  still  to  be  satisfied 
in  the  order  of  priority  of  the  judgments.44  The  lien  of  the 
judgment  is  not  merged  nor  destroyed  by  another  judgment 
thereon,  nor  by  a  forfeited  forthcoming  bond.  This  is  now 
statutory  in  Virginia,  though  prior  to  May  1,  1888,  it  had  been 
made  a  question.45  Where  there  have  been  successive  judgments 
against  a  common  debtor  who  has  aliened  a  part  of  his  land  after 
the  first  judgment  but  before  the  other  judgments  were  recovered, 
the  first  judgment  creditor  is  entitled  to  priority  of  satisfaction 
out  of  the  land  still  held  by  the  judgment  debtor,  although  he 
released  his  lien  on  the  land  so  aliened  after  the  recovery  of  the 
other  judgment.  There  can  be  no  marshalling  to  his  prejudice.40 
Lands  are  to  be  subjected  to  the  payment  of  judgments  in  the 
inverse  order  of  alienation. 

§  330.    Judgments  of  federal  courts. 

Judgments  and  decrees  rendered  in  the  circuit  and  district 
courts  of  the  United  States  are  liens  on  property  throughout 
the  State  in  which  they  are  rendered  in  the  same  manner,  and  to 
the  same  extent,  and  under  the  same  conditions  only,  as  if  such 

44.  Code,  §  3576;  Judge  Burks'  Address,  p.  29. 

45.  Code,  §  3574;    Bank    of    Old    Dom.    v.    Allen,    76    Va.    203,    204; 
Barksdale  v.  Fitzgerald,  76  Va.  895,  896. 

46.  Blakemore  v.  Wise,  95  Va.  269,  28  S.   E.  332. 


§    330  JUDGMENTS  OF   FEDERAL   COURTS  617 

judgments  and  decrees  had  been  rendered  by  a  court  of  general 
jurisdiction  of  such  State,  and  they  cease  to  be  liens  thereon  in 
the  same  manner  and  in  like  periods  as  judgments  and  decrees  of 
the  courts  of  such  St  .te.47  Formerly,  it  was  not  necessary  to 
docket  judgments  obtained  in  Federal  courts  in  order  to  bind  sub- 
sequent purchasers  for  value  without  notice.  This  was  a  great 
hardship  on  such  purchasers,  and  subjected  them  to  serious 
hazards.  It  was  changed  by  Act  of  Congress  August  1,  1888, 
declaring  that,  whenever  the  laws  of  any  State  require  a  judgment 
or  a  decree  of  a  State  court  to  be  registered,  recorded,  docketed, 
indexed,  or  any  other  thing  to  be  done  in  any  particular  manner, 
or  in  a  certain  office  or  county,  or  parish  in  the  State  of  Louisiana, 
before  liens  shall  attach,  this  Act  shall  be  applicable  therein 
whenever,  and  only  whenever,  the  laws  of  such  State  shall  author- 
ize the  judgments  and  decrees  of  the  United  States  courts  to  be 
registered,  recorded,  docketed,  indexed,  or  otherwise  conform  to 
the  rules  and  requirements  relating  to  the  judgments  and  de- 
crees of  courts  of  the  State.48  By  the  third  section  of  the  Act, 
however,  it  is  provided  that  "Nothing  herein  shall  be  construed 
to  require  the  docketing  of  a  judgment  or  decree  of  a  United 
States  court,  or  the  filing  of  a  transcript  thereof,  in  any  State 
office  within  the  same  county,  or  the  same  parish  in  the  State  of 
Louisiana,  in  which  the  judgment  or  decree  is  rendered,  in  order 
that  such  judgment  or  decree  may  be  a  lien  on  any  property 
within  such  county,  if  the  clerk  of  the  United  States  court  be 
required  by  law  to  have  a  permanent  office  and  a  judgment  record 
open  at  all  times  for  public  inspection  in  such  county  or  parish.'' 
The  word  "corporation"  does  not  appear  in  this  section.  There 
are  many  cities  in  the  State  which  lie  within  the  territorial  limits 
of  counties  and  yet  which  have  separate  and  distinct  organiza- 
tions. It  is  not  clear  as  to  what  construction  may  be  put  upon  this 
section  as  to  the  necessity  of  docketing  such  a  judgment  within 
the  corporation,  but  it  is  presumed  that,  if  the  clerk  of  the  Federal 
court  located  in  the  city  keeps  the  indices  and  records  required 
by  §  2  of  the  Act,  no  docketing  in  the  city  is  required — for 
example,  a  judgment  of  the  Federal  court  sitting  in  the  City  of 

47.  4  Fed.  Stat.  Anno.  4,  5.     U.  S.  Circuits  Courts  have  now  been 
abolished. 

48.  4  Fed.  Stat.  Anno.  5;  25  Stat.  L.  357. 


618  JUDGMENTS  §    331 

Lynchburg  is  not  required  by  the  Act  to  be  docketed  in  the  Cor- 
poration Court  of  the  City  of  Lynchburg.  It  will  be  observed 
further  that  no  provision  has  been  made  for  docketing  judgments 
or  decrees  of  the  United  States  Circuit  Court  of  Appeals  which 
sits  in  Richmond. 

Soon  after  the  above  Act  of  Congress  was  adopted,  an  act 
was  passed  by  the  Legislature  of  Virginia  providing  that  judg- 
ments and  decrees  rendered  in  the  circuit  and  district  courts  of 
the  United  States  within  this  State  may  be  docketed  and  indexed 
in  the  clerks'  offices  of  courts  of  this  State  in  the  same  manner, 
and  under  the  same  rules  and  requirements  of  law,  as  judgments 
and  decrees  of  courts  of  this  State.49 

§  331.    Foreign  judgments. 

Judgments  of  sister  states  and  foreign  countries  have  no  force 
and  effect  as  judgments  outside  of  the  territorial  limits  of  the 
states  or  countries  in  which  they  are  rendered,  and,  consequently, 
cannot  be  docketed  and  do  not  constitute  liens  in  another  juris- 
diction where  the  land  is  situated.  They  may  be  the  foundation 
of  actions  upon  which  judgments  may  be  rendered,  and  full  faith 
and  credit  will  be  given  to  the  records  of  sister  states  of  the 
Union,  as  provided  by  the  Constitution,  but  that  does  not  mean 
that  they  constitute  liens  outside  of  the  State  in  which  they  are 
rendered,  or  can  be  enforced  by  execution  or  other  process  until 
a  domestic  judgment  has  been  obtained. 

A  judgment,  as  has  been  seen,  is  a  lien  on  all  the  lands  of  the 
debtor  throughout  the  territorial  limits  of  the  State  in  which  it  is 
rendered ;  and  hence  a  judgment  rendered  in  the  State  of  Virginia, 
before  West  Virginia  was  cut  off,  was  a  lien  throughout  that 
portion  of  the  State  which  now  constitutes  the  State  of  West 
Virginia,  and  the  lien  thus  acquired  was  neither  lost  nor  impaired 
by  reason  of  the  division  of  the  State  of  Virginia  into  two  States 
and  the  falling  into  the  State  of  West  Virginia  of  a  county  in 
which  a  judgment  debtor  owned  land.  The  judgment  is  still  a  lien 
on  the  land  in  West  Virginia,  if  not  barred  by  the  statute  of 
limitations.50 

49.  Acts   1889-'90,   p.  22,   in   effect  Jan.   24,   1890;   Code,   §   3559a. 

50.  Gatewood  v.   Goode,  23   Gratt.  880,  891. 


§§    332-334  SATISFACTION    OF   JUDGMENTS  619 

§  332.    Collateral  attack. 

A  domestic  judgment  cannot  be  assailed  except  in  a  proceeding 
instituted  for  the  express  purpose  of  annulling,  correcting,  or 
modifying  it.  If  it  be  sought  to  enforce  the  judgment  by  a  bill 
in  chancery,  the  defendant  debtor  cannot  by  answer  assail  its  va- 
lidity, as  his  would  be  a  collateral  attack.51  One  of  the  most 
common  ways  of  directly  assailing  a  judgment  is  a  motion  to 
quash  an  execution  issued  thereon,  which  may  be  made  even 
after  the  execution  has  been  returned.52  If,  however,  the  judg- 
ment is  not  merely  voidable,  but  is  absolutely  void,  as  where  there 
has  been  no  sufficient  process  upon  which  to  found  it,  then  it 
may  be  treated  as  a  nullity  and  may  be  assailed  in  any  way  what- 
ever.53 

§  333.    Void  judgments. 

Judgments  without  personal  service  of  process  within  the  State 
issuing  it,  or  its  equivalent,  or  upon  a  service  of  process  in  a  man- 
ner not  authorized  by  law,54  or  judgments  by  default  which  have 
become  final  within  two  weeks  (formerly  one  month)  after  the 
service  of  process,55  are  void  judgments,  and  may  be  so 
treated  in  any  proceeding,  direct  or  collateral.  A  judgment  ren- 
dered by  a  judge  disqualified  by  reason  of  interest,  is  voidable 
only  and  not  void,  and  hence  cannot  be  collaterally  assailed.56 

§  334.    Satisfaction  of  judgments. 

A  judgment  once  satisfied  by  a  party  primarily  bound  for  it 
is  extinguished  as  a  lien.  If  however,  it  be  satisfied  by  a  party 

51.  Fulkerson  i:  Taylor,  102  Va.  314,  46  S.  E.  309;  King  v.  Burdett, 
28  W.  Va.  601. 

52.  Slingluff  v.  Collins.  109  Va.  717,  64  S.  E.  1055. 

53.  Staunton    Bldg.    Ass'n    v.    Haden,    92    Va.    ?01,    23    S.    E.    285; 
Crockett  r.   Etter.   105  Va.  679.  54  S.   E.  864. 

54.  Staunton  Bldg.  Ass'n  v.  Haden,  92  Va.  201,  23  S.  E.  285;  Jones 
v.  Crim,  66  W.  Va.  301,  66  S.  E.  367;  Tennant  v.  Fretts,  67  W.  Va. 
569,  68  S.  E.  387;  Pennoyer  v.  Neff,  95  U.  S.  714. 

55.  Code,   §   3287;   Dillard  v.   Thornton,   29   Gratt.   392;   Turnbull  t. 
Thompson,  27   Gratt.   396. 

56.  Butcher  v.  Kunst,  65  W.  Va.  384,  64  S.  E.  967. 


620  JUDGMENTS  §  335 

secondarily  liable,  it  will  be  kept  alive  as  against  his  principal 
and  may  be  enforced  as  a  lien  against  the  principal's  real  estate, 
notwithstanding  it  has  been  paid  by  a  surety,  in  this  respect  dif- 
fering entirely  from  an  execution  at  law.57  Provision  is  made 
by  statute  in  Virginia  for  having  judgments  marked  satisfied  on 
the  judgment  docket,  whether  such  satisfaction  be  in  whole  or  in 
part,  and  if  there  is  more  than  one  defendant  the  entry  must 
show  by  whom  the  satisfaction  is  made.58  If  payment  or  satis- 
faction of  a  judgment,  in  whole  or  in  part,  appears  by  the  return 
of  an  execution,  or  the  certificate  of  the  clerk  of  the  court  from 
which  the  execution  issued,  or  if  the  judgment  creditor  or  his  at- 
torney direct,  it  is  made  the  duty  of  the  clerk  in  whose  office  the 
judgment  is  docketed  to  enter  such  satisfaction,  in  whole  or  in 
part,  as  the  case  may  be,  on  the  lien  docket.  In  other  cases,  it 
is  made  the  duty  of  the  judgment  creditor,  in  person  or  by  his 
attorney,  to  cause  such  satisfaction,  in  whole  or  in  part,  to  be  en- 
tered on  the  judgment  docket  within  ninety  days  after  it  is  made, — 
such  entry  to  be  signed  by  the  creditor,  his  duly  authorized  agent 
or  attorney,  and  be  attested  by  the  clerk  in  whose  office  the  judg- 
ment is  docketed.  A  penalty  of  twenty  dollars  is  put  upon  the 
creditor  for  failure  to  comply  with  its  provisions.  It  is  also  pro- 
vided that  the  judgment  debtor  may,  after  notice  to  the  creditor, 
have  the  judgment  marked  satisfied,  upon  proof  that  it  has  been 
paid  off  or  discharged.59 

§  335.    Order    of    liability    of    lands    between    different 
alienees. 

Lands  are  to  be  subjected  to  the  Hen  of  judgments  in  the  in- 
verse order  of  their  alienation  by  the  judgment  debtor.  The 
statute  in  Virginia60  provides  as  follows : 

"Where  the  real  estate  liable  to  the  lien  of  a  judgment  is  more 

57.  Code,  §  3574.     It  seems  that  a  suit  to  be   subrogated  must  be 
brought  within  five  years  from  the  time  the  right  accrues.     See  Calla- 
way  v.  Saunders,  99  Va.  at  p.  351,  38  S.  E.  182;  Judge  Burks'  address, 
p.  29;  compare  Hawpe  v.  Bumgardner,  103  Va.  91,  48  S.  E.  554. 

58.  Code,  §§  3562,  3563,  3564.     As  to  satisfaction  of  other  liens,  see 
Code,  §§  2498,  2498a. 

59.  Code,  §§  3562,  3563,  3564. 

60.  Code,  §  3575. 


§    335  ORDER  OF  LIABILITY  OF  LANDS  621 

than  sufficient  to  satisfy  the  same,  and  it,  or  any  part  of  it,  has 
been  aliened,  as  among  the  alienees  for  value,  that  which  was 
aliened  last,  shall,  in  equity,  be  first  liable,  and  so  on  with  other 
successive  alienations,  until  the  whole  judgment  is  satisfied.  And 
as  among  alienees  who  are  volunteers  under  such  judgment 
debtor,  the  same  rule  as  to  the  order  of  liability  shall  prevail; 
but  as  among  alienees  for  value  and  volunteers,  the  lands  aliened 
to  the  latter  shall  be  subjected  before  the  lands  aliened  fo 
the  former  are  resorted  to;  and,  in  either  case,  any  part  of  such 
real  estate  retained  by  the  debtor,  shall  be  first  liable  to  the 
satisfaction  of  the  judgment." 

Under  this  statute  it  has  been  held  that,  where  several  lots  are 
sold  at  the  same  time,  or  on  the  same  day,  the  several  pur- 
chasers stand  on  the  same  footing,  and  the  lots  held  by  them  should 
be  charged  ratably,  and  further  that  the  fact  that  they  were 
conveyed  to  the  purchasers  at  different  times  makes  no  differ- 
ence.61 

The  former  statute  did  not  determine  the  order  of  liability  as 
between  alienees  for  value  and  volunteers.  The  present  statute 
makes  a  material  alteration  in  this  respect.  Of  this  alteration 
Judge  Burks  says: 

"It  has  been  decided  by  the  Court  of  Appeals  that  lands  bound 
by  the  liens  of  judgments,  and  aliened  after  the  liens  attached, 
should  be  subjected  to  the  satisfaction  of  the  liens  in  the  inverse 
order  of  alienation,  without  distinction  between  alienees  for  value 
and  volunteers.62  It  is  now  provided  that,  'as  among  alienees 
for  value  and  volunteers,  the  lands  aliened  to  the  latter  shall  be 
subjected  before  the  lands  aliened  to  the  former  are  resorted 
to.'  "<* 

It  would  seem,  under  this  statute,  that  no  matter  what  disposi- 
tion the  volunteer  makes  of  his  land,  it  will  be  liable  before  lands 
aliened  for  value,  and  that  the  land  aliened  to  the  volunteer  will 
be  liable  before  any  of  that  aliened  for  value,  although  the  aliena- 

61.  Alley  v.  Rogers,  19  Gratt.  366;  Harman  v.  Oberdorfer,  33  Gratt. 
497,  507. 

62.  Whitten  v.  Saunders,  75  Va.  563. 

63.  Judge  Burks'  Address,  p.  29. 


622  JUDGMENTS  §    336 

tions   for  value  take  place   after  the  volunteer   aliens   his   land 
for  a  valuable  consideration. 

§  336.    Enforcement  of  judgments. 

The  usual  method  of  enforcing  the  collection  of  a  judgment  is 
by  a  writ  of  fieri  facias  (discussed  in  the  next  chapter)  by  which 
the  amount  of  the  judgment  is  collected  out  of  the  personal 
property  of  the  defendant.  The  judgment,  however,  is  a  lien 
only  on  real  estate,  or  some  interest  therein,  and  if  it  is  sought 
to  enforce  this  lien,  the  proceeding  is  by  a  bill  in  equity.  It  is  pro- 
vided by  statute  in  Virginia,  that  if  it  appears  to  the  court  that 
the  rents  and  profits  of  the  real  estate  subject  to  the  lien  will  not 
satisfy  the  judgment  in  five  years,  the  court  may  direct  the  sale 
of  said  real  estate,  or  any  part  thereof.64  Of  course,  what  is 
meant  is  the  net  rents  and  profits  after  paying  cost  of  suit,  current 
taxes,  and  other  expenses  incident  to  renting.  No  particular  mode 
is  prescribed  for  determining  whether  or  not  the  rents  and 
profits  for  five  years  will  satisfy  the  liens  thereon.  The  fact  may 
be  made  to  appear  by  the  pleadings,  or  the  admissions  of  the 
parties,  or  by  evidence.65  However  it  may  appear,  the  court  has 
no  right  to  direct  a  sale  of  the  land,  or  any  part  thereof,  if  the 
rents  and  profits  for  five  years  will  discharge  the  liens  aforesaid. 
This  statute,  however,  applies  only  to  suits  to  enforce  the  lien 
of  judgments.  It  has  no  application  to  a  suit  to  enforce  a 
vendor's  lien.66 

If  the  judgment  is  not  barred  by  act  of  limitations  at  the  time  of 
the  death  of  the  judgment  debtor,  a  bill  in  equity  may  be  main- 
tained against  his  personal  representatives  and  heirs  to  subject 
the  real  estate  of  the  decedent  to  the  payment  of  the  judgment, 
without  first  reviving  the  judgment.67 

If  the  amount  of  the  judgment  does  not  exceed  $20.00,  exclu- 
sive of  interest  and  cost,  no  bill  to  enforce  the  lien  thereof  can  be 
maintained  in  Virginia,  unless  it  appears  that  sixty  days  before 
the  institution  of  the  suit  the  judgment  debtor,  or  his  personal 

64.  Code,  §  3571. 

65.  Ewart  v.  Saunders,  25  Gratt.  203;  Horton  v.  Bond,  28  Gratt.  815. 

66.  Neff  v.  Wooding,  83  Va.  432,  2  S.  E.  731. 

67.  James  v.  Life,  92  Va.  702,  24  S.  E.  275. 


§    336  ENFORCEMENT  OF  JUDGMENTS  623 

representative,  and  the  owner  of  the  real  estate  on  which  the 
judgment  is  a  lien,  or,  in  case  of  a  non-resident,  his  agent  or 
attorney  (if  he  have  one  in  this  State),  had  notice  that  the  suit 
would  be  instituted  if  the  judgment  was  not  paid  within  that 
time.08  Nor  can  any  suit  be  brought  to  enforce  the  lien  of  a 
judgment  upon  which  the  right  to  issue  an  execution,  or  bring  a 
scire  facias,  or  an  action,  is  barred.69 

68.  Code,  §  3572. 

69.  Code,  §  3573. 


CHAPTER  XLII. 
EXECUTIONS. 

§  337.  Execution  must  follow  judgment. 

§  338.  Issuance    of   execution. 

§  339.  Property  not  subject  to  levy. 

Executions   which   cannot   be   levied   on  any  property. 

Executions   against   executors   and   administrators. 

Executions  against  a  defendant  who  is   dead. 

Receivers. 

Property  not  leviable  on  under  any  execution. 

Railroads  and  quasi-public  corporations. 

Choses  in  action. 

§  340.  Execution  against  principal  and  surety. 
§  341.  Duty  of  officer. 
§  342.  The  levy. 

Money. 

Partnership  property. 

Mortgaged  property. 

Shares  of  stock. 

Several  executions. 

§  343.  Payments  to  and  disbursements  by   officer. 
§  344.  Payment    by   officer    for   debtor. 
§  345.  Sale  of  property. 
§  346.  The  return. 

Amendment  of  return. 

Title  of  purchaser. 
§  347.  Delivery  bond. 
§  348.  Interpleader  proceedings. 
§  349.  The  lien  and  its  commencement. 
§  350.  Territorial  extent  of  lien. 

Tangible  property. 

Intangible  property. 
§  351.  Duration  of  lien. 

Tangible  property. 

Intangible  property. 
§  352.  Rights  of  purchaser. 

Tangible  property. 

Intangible  property. 
§  353.  Mode  of  enforcing  the  lien. 

Tangible  property. 

Intangible  property. 

Situs  of  debt  for  purpose  of  garnishment. 


§§  337-338  ISSUANCE  OF  EXECUTIONS  625 

§  354.  Property  undisclosed. 
§  355.  Non-resident  debtor. 
§  356.  Motion  to  quash. 
§  357.  Venditioni  exponas. 

§  337.    Execution  must  follow  judgment. 

There  are  various  forms  of  executions,  but  that  to  which  at- 
tention is  now  specially  directed  is  the  writ  of  fieri  facias,  which 
is  the  ordinary  judicial  process  for  enforcing  the  collection  of  a 
money  judgment  by  the  sale  of  the  property  of  the  defendant. 
The  writ  is  addressed  to  the  sheriff  of  the  county  or  sergeant  of 
the  corporation,  and  directs  him  of  the  goods  and  chattels  of  the 
defendant  "you  cause  to  be  made"  (fieri  facias)  the  amount  of 
the  judgment.  As  its  purpose  is  to  enforce  the  collection  of  a 
money  judgment,  it  must  follow  the  judgment  as  to  the  amount, 
time  from  which  it  bears  interest,  names  of  parties,  and  in  every 
other  material  aspect,  and  any  variance  between  the  judgment 
and  the  execution  is  good  ground  to  quash  the  execution.1  If 
the  judgment  be  a  joint  judgment  against  several,  the  execution 
must  be  joint  also,  though  some  of  the  parties  be  dead  ;2  but  if 
the  action  be  against  several  jointly  bound,  and  the  judgment 
be  rendered  against  several  defendants  at  different  dates,  there 
may  be  one  joint  execution.3 

§  338.    Issuance  of  executions. 

The  method  of  obtaining  an  execution  is  generally  regulated 
by  statute.  In  Virginia  it  is  made  the  duty  of  the  clerk  ex  officio 
to  issue  the  writ  as  soon  as  practicable  after  the  adjournment  of 
the  court,  and  place  it  in  the  hands  of  the  proper  officer  for  execu- 
tion, unless  otherwise  directed,  by  a  writing,  by  the  beneficiary, 
his  agent  or  attorney.4  If  the  judgment  and  the  claim  on  which 
it  was  based  has  been  assigned,  the  assignor  has  no  control  over 
an  execution  issued  by  direction  of  the  assignee.5  Usually,  an 

1.  Snavely  v.  Harkrader,  30  Gratt.  487;  Taney  v.  Woodmansee,  23 
W.  Va.  709. 

2.  Holt  v.  Lynch,  18  W.  Va.  567. 

3.  Walker  v.  Com.,  18  Gratt.  13. 

4.  Code,  §  3581. 

5.  Clark  z>.  Hogeman,  13  W.  Va.  718. 

—40 


626  EXECUTIONS  §  338 

execution  can  only  issue  on  a  final  judgment,  but  it  is  provided 
by  statute  in  Virginia  that  any  court,  after  the  fifteenth  day  of 
its  term1,,  may  make  a  general  order  allowing  executions  to  issue 
on  judgments  and  decrees  after  ten  days  from  their  date,  although 
the  term  at  which  they  are  rendered  be  not  ended,  and  that  for 
special  cause  it  may  in  any  particular  case,  except  the  same  from 
such  order,  or  allow  an  execution  thereon  at  an  earlier  period.6 
But  this  provision  was  not  intended  to,  and  does  not,  impart  to 
such  judgment  the  quality  of  finality  so  as  to  deprive  the  court 
during  the  term  of  the  power  to  correct,  or,  if  need  be,  annul  an 
erroneous  judgment.7  This  statute,  however,  has  no  application 
to  office  judgments  which,  we  have  seen,8  become  final  on  the 
adjournment  of  the  court,  or  the  fifteenth  day  thereof,  whichever 
shall  happen  first.  Office  judgments  after  the  time  above  stated 
have  all  the  properties  of  final  judgments,  and  executions  may  be 
issued  upon  them  forthwith,  without  any  order  of  the  court, 
general  -or  special,  for  that  purpose.  No  matter  how  long  the 
court  remains  in  session,  it  has  no  power  to  re-open  or  otherwise 
set  aside  an  office  judgment  after  the  fifteenth  day  of  the  term. 
The  rule  that  the  record  remains  in  the  breast  of  the  court  during 
the  term  has  no  application  to  an  office  judgment  after  it  has  be- 
come final.9  Usually  a  court  will  not  direct  an  execution  to  is- 
sue immediately  upon  the  rendition  of  the  judgment,  but  if  it  is 
shown  to  the  court  that  a  defendant  is  about  to  remove  his  effects 
out  of  the  jurisdiction  of  the  court,  or  if  any  other  good  cause 
is  shown,  the  court  will  direct  an  execution  to  issue  forthwith. 
The  plaintiff  may  have  as  many  executions  as  he  chooses,  but  he 
can  have  but  one  satisfaction.  The  executions  may  all  be  in 
force  at  the  same  time  or  successively,  but  if  at  the  same  time, 
the  defendant,  as  a  rule,  only  pays  the  cost  of  one.10  But  the 

6.  Code,  §  3600. 

7.  Baker  v.  Swineford,  97  Va.  112,  33  S.  E.  542. 

8.  Ante,  §  185. 

9.  Enders  v.  Burch,  15   Gratt.  64. 

10.  Section  3597  of  the  Code  is  as  follows: 

"Subject  to  the  limitations  prescribed  by  chapter  one  hundred  and 
seventy-four,  a  party  obtaining  an  execution  may  sue  out  other  exe- 
cutions at  his  own  costs,  though  the  return  day  of  a  former  execu- 
tion has  not  arrived;  and  may  sue  out  other  executions  at  the  de- 


§    338  ISSUANCE  OF  EXECUTIONS  627 

issuing  of  numerous  executions  for  the  purpose  of  unnecessarily 
oppressing  or  injuring  a  defendant  will  not  be  permitted.11  When 
the  execution  comes  into  the  hands  of  the  officer,  he  must  endorse 
on  it  the  year,  month,  day  and  time  of  day  he  receives  it,  and  a 
penalty  is  put  upon  him  for  failure  to  do  so,12  for  the  lien  dates 
from  the  time  (not  the  day)  it  is  delivered  to  the  officer  to  be 
executed.13  It  is  returnable  within  ninety  days  after  its  date,  to 
the  court  on  the  first  day  of  a  term,  or  in  the  clerk's  office  to 
the  first  or  third  Monday  in  the  month,  or  to  the  first  day  of  any 
rules.14 

An  execution  may  be  issued  within  a  year  after  the  date  of  the 
judgment,  and,  if  so  issued,  and  there  is  no  return  thereon,  other 
executions  may  be  issued  within  ten  years  from  the  return  day 
thereof,  and,  if  there  is  a  return,  other  executions  may  be  sued 
out  within  twenty  years  from  such  return  day.  But  if  no  execu- 
tion issues  within  a  year,  none  can  properly  thereafter  issue  un- 
less within  ten  years  the  judgment  be  revived  by  scire  facias.™ 
If,  however,  the  first  execution  on  a  judgment  is  issued  after  a 
year,  it  is  not  a  void  process,  but  voidable  only,  and  cannot  be 
collaterally  assailed.  It  is  valid,  and  may  be  enforced  unless 

fendant's  costs,  where  on  a  former  execution  there  is  a  return  by 
which  it  appears  that  the  writ  has  not  been  executed,  or  that  it  or 
any  part  of  the  amount  thereof  is  not  levied,  or  that  property  levied 
on  has  been  discharged  by  legal  process  which  does  not  prevent  a 
new  execution  on  the  judgment.  In  no  case  shall  there  be  more 
than  one  satisfaction  for  the  same  money  or  thing." 

11.  Sutton  v.  Marye,  81  Va.  329,  334. 

12.  Section  3589  of  the  Code  is  as  follows: 

"Every  officer  shall  endorse  on  each  writ  of  fieri  facias  the  year, 
month,  day,  and  time  of  day,  he  receives  the  same.  If  he  fail  to 
do  so,  the  judgment  creditor  may,  by  motion,  recover  against  him 
and  his  sureties,  jointly  and  severally,  in  the  court  in  which  the 
judgment  was  rendered,  a  sum  not  exceeding  fifteen  per  cent,  upon 
the  amount  of  the  execution." 

13.  Code,  §  3587. 

14.  Code,  §  3220;   see  this  section,  ante,  §  186,  note  4. 

15.  Code,  §  3577.     In  West  Virginia  an  execution  may  issue  within 
two  years,  and  thereafter  if  none  has  been  so  issued,  instead  of  a  scire 
facias  or  action,   the  procedure   is  by  motion   after  ten   days'  notice, 
within   ten    years    from   the    date   of   the   judgment    to    obtain    a   new 
execution.     Code,  W.  Va.,  §  4150. 


628  EXECUTIONS  §  338 

quashed,  or  otherwise  vacated  by  a  direct  proceeding  for  that 
purpose,  and  has  the  same  effect  by  way  of  creating  a  lien  as  a 
regular  execution.16  In  order  to  give  an  execution  this  additional 
vitality,  that  is,  the  right  to  sue  out  additional  executions  within 
ten  years  without  reviving  by  scire  facias,  it  is  not  necessary  for 
the  first  execution  to  go  into  the  hands  of  an  officer  to  be  ex- 
ecuted. It  is  sufficient  if  it  is  simply  filled  out  by  the  clerk, 
marked  "to  lie,"  and  stuck  in  a  pigeon  hole.  A  new  execution 
may  then  be  issued  at  any  time  within  ten  years  from  the  return 
day  of  that  execution.  An  execution  is  issued  within  the  meaning 
of  the  statute  when  it  is  made  out  and  signed  by  the  clerk  ready 
for  the  officer,  although  it  has  not  been  placed  in  the  hands  of  the 
officer  to  be  levied.  Other  executions  may  then  be  issued  within 
ten  years  from  the  return  day  of  that  execution.17 

A  scire  facias,  however,  against  a  personal  representative  to 
revive  a  judgment  against  a  decedent,  must  be  brought  within 
five  years  from  the  date  of  his  qualification.  If  a  sole  plaintiff  or 
defendant  dies  after  judgment,  but  before  fi.  fa.,  is  issued  there 
must  be  a  scire  facias  in  either  case  to  revive  the  judgment,  as 
there  can  be  no  process  for  or  against  one  who  is  dead;  but  if 
there  be  several  plaintiffs  or  defendants,  and  one  of  them  dies 
there  may  still  be  a  fi.  fa.,  without  revival,  but,  as  the  execution 
must  follow  the  judgment,  it  must  run  in  the  names  of  all  of 
the  plaintiffs  against  all  of  the  defendants,  although  one  or  more 
plaintiffs  or  defendants  be  dead.  As  to  the  plaintiffs,  the  execu- 
tion survives  to  the  survivor,  and  there  is  no  need  of  revival,  but 
the  funds  will  be  paid  to  the  survivors.  As  to  the  defendants, 
the  fi.  fa.  likewise  survives  against  the  surviving  defendants,  and, 
although  all  of  the  defendants  in  the  judgment  must  likewise  be 
defendants  in  the  execution,  it  can  only  be  levied  on  the  goods 
and  chattels  of  survivors.18 

An  execution  issued  in  contravention  of  an  agreement  of  par- 
'ties  is  not  void,  but  voidable  only,  and  cannot  be  collaterally  as- 
sailed. It  has  all  the  effect  of  a  valid  execution  until  annulled. 

16.  Beale  v.  Botetourt  Justices,  10  Gratt.  278;  Fulkerson  v.  Taylor, 
102  Va.  314,  318,  46  S.  E.  309. 

17.  Davis  v.  Roller,  106  Va.  46,  55  S.  E.  4. 

18.  Holt  v.  Lynch,  18  W.  Va.  567;  1  Rob.  Pr.   (old)   575;  11  Am.  & 
Eng.  Encl.  Law  (2nd  Ed.)  612. 


§    339  PROPERTY    NOT    SUBJECT    TO    LEVY  629 

It  is  sufficient,  till  vacated,  to  create  a  lien  on  the  choses  in  action 
of  the  execution  debtor.19 

§  339.    Property  not  subject  to  levy. 

The  duration  of  the  life  of  a  judgment  is  dependent  upon  the 
issuance  of  execution  thereon,  and  hence,  to  preserve  or  extend 
the  life  of  a  judgment,  an  execution  may  be  issued  on  any  valid 
judgment,  but  there  are  some  executions  which  cannot  be  levied 
on  any  property  at  all,  and  so  also  there  is  some  property  upon 
which  no  execution  can  be  levied. 

Executions  Which  Cannot  Be  Levied  on  Any  Property. — Exe- 
cutions may  probably  issue  on  judgments  against  a  State  or  the 
United  States  merely  for  the  purpose  of  preserving  the  life  of 
the  judgment,  but  they  cannot  be  levied  on  any  property  of  the 
defendant.  For  manifest  reasons  of  public  policy,  the  public 
property  cannot  be  levied  on,  nor  the  orderly  conduct  of  the  gov- 
ernment interfered  with.  The  State  cannot  be  sued  by  a  private 
person  except  with  its  consent,  and  then  only  in  such  courts  as 
it  may  select.  In  Virginia  the  Circuit  Court  of  the  city  of 
Richmond  is  designated  by  the  legislature  as  the  court  in  which 
the  State  may  be  sued.20  The  effect,  however,  of  the  judgment 
is  simply  to  establish  the  demand.  No  execution  can  be  levied 
under  the  judgment,  and  no  compulsory  course  taken  to  enforce 
its  collection,  nor  can  an  execution  be  levied  on  the  property  of 
quasi  public  corporations,  such  as  insane  hospitals,  the  University 
of  Virginia,  and  the  like.  In  all  such  cases,  application  must  be 
made  to  the  legislature  to  make  an  appropriation  to  pay  the  judg- 
ment. 

Executions  against  Executors  and  Administrators. — An  exe- 
cution against  an  executor  or  administrator  as  such,  to  be  levied 
de  bonis  testatoris,  cannot  be  levied  on  assets  of  the  decedent, 
for  this  would  destroy  the  order  of  payment  of  debts  fixed  by 
statute.21  No  lien  can  be  fixed  on  the  estate  of  a  man  after  he  is 

19.  Fulkerson  v.  Taylor,  102  Va.  314,  46  S.  E.  309. 

20.  Code,  §   746. 

21.  Code,   §   2660.      See   also,    and    compare.    Brewer   v.    Hutton,    45 
W.   Va.   107,   30   S.    E.   81;   Park  v.   McCauley,   67   W.   Va.   104,   67   S. 
E.  174. 


630  EXECUTIONS  §  339 

dead.  The  judgment  simply  establishes  the  plaintiff's  demand 
and  stops  the  running  of  the  statute  of  limitations  thereon.  The 
rule  was  otherwise  at  common  law.22 

22.  The  following  discussion  of  this  subject,  written  by  the  author, 
appears  in  5  Va.  Law  Reg.  pp.  876-878: 

In  a  recent  communication  you  ask  two  questions:  (1)  Can  there 
be  a  judgment  against  a  personal  representative,  within  twelve 
months  of  his  qualification?  And  (2)  Can  the  execution  on  such  a 
judgment,  if  rendered,  be  levied  on  the  assets  of  the  decedent  in 
the  hands  of  his  representative  to  be  administered? 

1.  I  have  no  trouble  in  my  own  mind  in  saying  that  there  can  be 
such    judgment    within    twelve    months.      I    think    this    is    sufficiently 
covered  by  §§  2654  and  2677  of  the  Code.     No   restriction  is  placed 
by   either   section   upon   the   time   within   which   such   a   suit   may   be 
brought,  and  the  action  might  be  necessary  in  order  to  prevent  the 
bar  of  the  statute  of  limitations.     (Though  as  to  the  latter  suggestion, 
see  Code,  §  2919,  amended  by  Acts   1895-6,   p.   331.) 

2.  I    have    always    been    strongly    inclined    to    the    opinion    that    an 
execution   on   such   a  judgment   could  not  be   levied   on   the  personal 
property  of  the   decedent  in   the   hands   of  his   representative.     As   I 
understand  it,  the  common  law  made  provision  for  priorities  among 
the    creditors    of    the    decedent,    preferring    first,    debts    due    to    the 
crown;   second,  those  under  special   statutes;   third,   debts   of   record, 
and    fourth,    specialty   debts.     The    common    law,    however,    accorded 
priority  among  debts  of  a  particular  class  to  the  creditor  who   first 
obtained    judgment    against    the    decedent's    representative.      If    the 
creditor  sued  the  personal  representative,  the  latter  might  plead  plene 
administravit,  nulla  bona,  and  other  pleas  which  would  prevent  judg- 
ment going  against  him.     If  he  pleaded  plene  administravit,  this   did 
not  protect  him  merely  because  there  were  other  debts  in  existence 
which  were  entitled  to  priority  over  the  debts  in   suit.     To  be  pro- 
tected  by   such   a  plea   he   must   have  paid   the   debts,   but   he   might 
plead  specially  that  there  were  not  sufficient  assets  to  pay  the  debt 
of  the  plaintiff  after  paying  those  who  were  entitled  to  priority  over 
him,  and   this  .would   be   an  answer  to  the  plaintiff's  action.     If  the 
pleadings  or  proof  showed   that  there  was   enough   in   the   hands   of 
the  personal  representative  after  paying  the  debts  entitled  to  prefer- 
ence, to  pay  a  part  only  of  the  plaintiff's  debt,  he  had  judgment  for 
that  amount,  and  possibly  for   the   residue  to  be   paid  out  of  assets 
which    might   thereafter   come    into    the   hands    of    the    representative 
("quando  acciderint").     See  Gardner  v.  Vidal,  6  Rand.  106.     If,  how- 
ever, the  representative  failed  to  enter  a  proper  plea,  and  judgment 
was  recovered  against  him,  he  became  personally  bound  for  the  debt. 
He  could  apply  so  much  of  the  estate  of  his  intestate  as  was  in  his 


§    339  PROPERTY   NOT  SUBJECT  TO  LEVY  631 

Executions  against  a  Defendant  Who  Is  Dead. — There  is  much 
conflict  of  authority  as  to. whether  a  judgment  against  a  dead  man 
(having  died  after  service  of  process  and  before  judgment)  is  void 
or  voidable.  In  Virginia  it  is  held  to  be  voidable  only,  and  not  as- 
sailable collaterally,  but  only  in  a  direct  proceeding  for  that  pur- 
pose. Notwithstanding  this  fact,  however,  no  execution  issued 
after  death  could  be  levied  on  his  personal  property  for  the  rea- 

hands  after  satisfying  debts  entitled  to  priority,  but  the  residue  he 
must  make  up  out  of  his  own  estate.  Williams'  Ex'ors,  999-1000; 
Schouler's  Ex'ors  and  Adm'rs,  426.  The  judgment,  and  the  execution 
in  pursuance  thereof,  were  de  bonis  testatoris.  Upon  a  return  of 
nulla  bona  on  such  an  execution,  the  creditor  was  put  to  a  suit  to 
establish  a  devastavit;  and,  having  established  this,  he  proceeded  by 
another  suit  on  the  bond  of  the  representative  against  him  and  his 
sureties.  This  suit  to  establish  the  devastavit  was  dispensed  with  by 
statute  in  1813  (see  Bush  v.  Beall,  1  Gratt.  229,  and  the  statutes  there 
cited),  which  statute  is  continued  in  force  and  now  constitutes  §  2658 
of  the  Virginia  Code. 

The  rule  of  the  common  law,  as  stated  above,  accorded  priority  to 
the  creditor  first  obtaining  a  judgment  against  the  administrator, 
over  other  debts  of  the  same  class.  This  rule  the  Revisers  of  the 
Code  of  1849  undertook  to  abolish  by  §  34  of  Ch.  130,  which  now 
constitutes  §  2661  of  the  Code.  In  a  note  to  this  section,  the  Re- 
visors  in  speaking  of  their  intention  to  do  away  with  this  preference 
say:  "We  think  the  measures  proposed  by  us  will  effect  an  im- 
provement in  this  state  of  things.  We  do  not  propose  to  take  from 
any  creditor  who  prefers  to  bring  an  action  at  law,  the  right  of 
bringing  it  if  he  pleases.  But  we  take  away  what  is  now  the  chief  in- 
ducement to  such  suits,  when  we  abolish  the  preference  now  given  to 
the  first  among  several  judgments  for  debts  of  equal  dignity."  This, 
of  itself,  seems  to  me  an  indication  that  the  Revisors  intended  the 
judgment  to  have  the  effect  of  merely  establishing  the  claim  of  the 
creditor.  In  addition  to  this,  they  continued  in  force  the  act  found 
in  1  Rev.  Code,  pp.  364  and  390 — now  found  in  the  present  Code  as 
§  2659 — providing  that  no  personal  representative  or  any  surety  of 
his  shall  be  chargeable  beyond  the  assets  received,  by  reason  of  any 
omission  or  mistake  in  pleading,  etc.,  and  allowed  the  same  defense 
to  be  made  on  an  action  on  the  representative's  bond  as  could  have 
been  made  in  the  suit  to  establish  the  devastavit.  These  statutes,  I 
say,  tend  to  show  that  the  legislature  merely  intended  the  judgment 
against  the  personal  representative  to  have  the  effect  of  establishing 
the  debt. 

Section  2660  of  the  Code  establishes  the  order  in  which  debts  are 
tn  he  paid,  and  they  cannot  be  paid  in  any  other  order.  It  is  the 


632  EXECUTIONS  §  339 

sons  hereinbefore  stated.  As  to  personal  property,  the  execution 
could  stand  on  no  higher  ground  than  if  he  had  died  after  judg- 
ment and  before  the  execution  issued.23  If  an  execution  debtor 
is  alive  when  the  execution  goes  into  the  hands  of  the  officer  to  be 
executed,  but  dies  before  the  return  day,  the  execution  may  still 
be  levied  on  the  property  of  the  defendant  as  the  lien  attached  in 
his  lifetime,  and  the  proceeding  is  a  mere  enforcement  of  that  lien, 
but  it  would  be  otherwise  if  he  had  died  before  the  execution  is- 
sued, that  is,  before  it  was  made  out  ready  to  be  delivered  to  the 

right  and  the  duty  of  the  personal  representative  to  sell  the  personal 
property,  reduce  it  to  money  and  pay  the  debts  of  the  decedent  in 
the  order  required.  It  is  fixed  by  law  what  he  shall  sell  and  what  he 
shall  not  sell,  for  the  purpose  of  paying  debts  and  legacies.  Code, 
§§  2650,  2651  and  2652.  He  holds  the  legal  title  to  the  property  in 
trust  for  the  creditors  and  distributees.  The  time  is  fixed  when  he 
shall  settle  his  account,  penalties  are  imposed  for  failure  to  settle, 
and  ample  remedy  given  to  compel  such  settlements.  Code,  §§ 
2678,  2679  and  2680. 

All  of  these  provisions  look  to  the  sale  of  the  personal  property 
by  the  personal  representative,  and  by  him  alone.  He  is.  compelled 
to  account  for  it,  and  if  he  fails  to  do  so  may  be  charged  with  it. 
The  Code  is  to  be  construed  as  a  whole.  It  is  one  act  of  assembly, 
and  the  whole  is  to  be  construed  together  so  as  to  give  effect  to 
every  part  of  it,  if  possible.  So  construing  it.  it  seems  to  me  that 
it  is  necessary  to  hold  that  the  personal  representative,  and  he  alone, 
is  authorized  to  sell  the  property  of  the  decedent;  and  that  the  gen- 
eral provisions  with  reference  to  sales  of  property  under  fi.  fa.  do 
not  apply  to  a  personal  representative  who  holds  property  in  trust 
to  be  applied  in  a  particular  way.  To  hold  otherwise  would  be  to 
allow  one  creditor  to  acquire  priority  over  others  of  the  same  class, 
or  even  of  a  superior  class,  which  could  never  have  been  the  inten- 
tion of  the  legislature.  Ample  power  is  given  the  creditor  to  make 
his  debt  if  the  assets  of  the  estate  are  sufficient  for  the  purpose,  but 
no  power  is  conferred  anywhere,  expressly  or  impliedly,  to  destroy 
the  order  of  payment  of  debts  established  by  §  2660;  and  all  idea 
of  such  preference  is  expressly  negatived,  and  in  fact  forbidden,  by 
§  2661;  so  that  it  seems  to  me,  looking  at  the  Code  as  a  whole,  that 
no  power  exists  in  an  officer  to  levy  on  the  personal  property  of  a  de- 
cedent in  the  hands  of  the  personal  (representative  to  be  administered. 
But  even  if  I  am  wrong  in  this,  I  take  it  that  there  can  be  no  ques- 
tion that  the  representative  could  enjoin  a  sale  under  such  execution, 
and  have  the  estate  administered  according  to  law. 

23.   Robinett  v.  Mitchell,  101  Va.  762,  45  S.  E.  287. 


§    339  PROPERTY   NOT  SUBJECT   TO  LEVY  633 

officer.    The  same  effect  would  follow  if  a  plaintiff  died  after  is- 
sue and  before  the  return  day  of  the  execution.24 

Receivers. — Upon  a  judgment  against  a  receiver  under  stat- 
utes allowing  actions  against  them,  no  execution  can  issue  so  as  to 
have  the  effect  of  disturbing  the  order  of  distribution  of  the  trust 
fund.  The  effect  of  the  judgment  is  simply  to  establish  the  de- 
mand, and  stop  the  running  of  the  statute  of  limitations  thereon 
and  questions  of  priority,  time,  and  mode  of  payment  are  left  to 
the  control  and  disposition  of  the  court  appointing  the  receiver.25 
In  Virginia  no  execution  can  issue  on  such  a  judgment.26 

Property  Not  Liable  to  Levy  for  Any  Execution. — As  a  general 
rule,  all  personal  property  of  the  defendant  is  liable  to  the  levy  of 
an  execution  against  the  defendant,  but  for  reasons  of  public  pol- 
icy, certain  exceptions  have  been  made  to  this  general  rule,  and  it 
has  been  provided  by  statute  in  Virginia  that  certain  designated 
articles,  usually  necessary  for  the  well-being  of  any  family  shall 
be  exempt  from  levy  for  the  debts  of  such  party.  Such,  for  ex- 
ample, is  what  is  designated  as  the  poor  debtor's  law.27  A  lien  or 
deed  of  trust  upon  property  exempt  under  §  3650  is  declared  to 
be  void.  So,  also,  property  claimed  as  a  homestead  is  exempt 
from  levy  for  most  debts  unless  the  homestead  is  waived,  or  the 
debt  is  paramount  to  the  homestead.  So,  also,  municipal  corpora- 
tions and  counties  are  regarded  as  arms  of  the  state  for  many  pur- 
poses, and  no  execution  can  be  levied  on  their  personal  property 
used  for  public  purposes,  nor  can  taxes  due  them  be  garnished. 
The  appeal  must  be  to  the  council  or  board  of  supervisors  to  make 
a  levy  to  pay  the  debt,  and  if  this  proves  unavailing,  mandamus 
lies  to  compel  a  proper  levy  for  the  purpose.28 

Railroads  and  Quasi  Public  Corporations. — It  is  said:  "The 
property  of  a  public  corporation,  such  as  a  railroad  or  bridge 
company,  which  is  essential  to  the  exercise  of  its'  corporate  fran- 
chise, and  a  discharge  of  the  duties  it  has  assumed  towards  the 
general  public,  cannot,  without  statutory  authority,  be  sold  to 

24.  Hatcher  r.  Lord,  115  Ga.  619,  41  S.  E.  1007. 

25.  Ante,  §  53;  Texas,  etc.,  R.  Co.  r.  Johnson,  151  U.   S.  81. 

26.  Code,  §  3415a. 

27.  Code,  §§  3650,  3651,  3652. 

28.  2  Dillon  Mun.  Corp.,  §§  576,  577;  Brown  v.  Gates,  15  W   Va.  131. 


634  EXECUTIONS  §  339 

satisfy  a  common  law  judgment,  either  on  execution  or  in  pur- 
suance of  an  order  or  decree  of  court.  The  only  remedy  of  the 
judgment  creditor  in  such  case  is  to  obtain  the  appointment  of  a 
receiver,  and  a  sequestration  of  the  company's  earnings."29  An- 
other statement  of  the  law  is  as  follows :  "In  the  case  of  corpo- 
rations such  as  railroads  or  bridge  companies,  which,  though  not 
strictly  public  corporations,  are  created  to  serve  public  purposes, 
and  are  charged  with  public  duties,  such  property  as  is  necessary 
to  enable  them  to  discharge  their  duties  to  the  public  and  effectu- 
ate the  objects  of  their  incorporation,  is  not,  according  to  the 
weight  of  authority,  apart  from  statutory  provision,  subject  to 
execution  at  law.  But  the  property  of  a  quasi-public  corporation 
not  necessary,  or  not  used  for  the  purposes  which  called  the  cor- 
poration into  being,  is  not  exempt  from  seizure  and  sale  under 
execution."30 

Just  what  is  "essential  to  the  exercise  of  its  corporate  fran- 
chises, and  a  discharge  of  its  duties  to  the  public"  is  not  alto- 
gether clear,  but  it  would  seem  on  principle  that  the  roadbed  and 
rolling  stock  of  a  railroad  company  were  within  this  designation, 
and  hence  not  subject  to  levy  in  jurisdictions  holding  this  view. 
The  ground  of  the  exemption  is  the  interest  that  the  public  has 
in  the  exercise  of  the  corporate  franchise,  and  the  duty  which 
the  company  owes  to  the  public ;  and  on  principle  it  would  seem 
that  in  the  absence  of  statute,  these  are  sufficient  to  exempt  such 
property  from  levy.  In  some  jurisdictions  this  doctrine  is  re- 
pudiated, but  if  the  property  is  actually  employed  in  interstate 
commerce,  it  is  exempt  from  levy  on  that  account  only.  On  this 
whole  subject  there  is  much  conflict  of  authority.31  In  Virginia, 
it  is  believed  to  be  the  practice  to  levy  on  the  personal  property 
of  railroad  companies,  including  rolling  stock. 

29.  Overton  Bridge  Co.  v.  Means,  33  Neb.  857,  29  Am.  St.  Rep.  514. 

30.  11  Am.  &  Eng.   Encl.  Law   (2nd  Ed.)   620. 

31.  Reynolds  v.  Lumber  Co.,  169  Pa.  St.  626,  47  Am.  St.  Rep.  935; 
Gardner  v.    Mobile,   etc.,   R.   Co.,   102  Ala.   635,   48   Am.    St.   Rep.   84; 
Wall   v.    N.    &  W.    R.    Co.,   52   W.   Va.   485,   44    S.    E.   294,   94   Am.    St. 
Rep.  948,  64  L.  R.  A.  501,  11  Am.   &  Eng.   Encl.  Law   (2nd   Ed.)   620, 
and  cases  cited;  Brady  v.  Johnson,  75  Md.  445,  26  Atl.  49,  20  L.  R.  A. 
737;  Connery  v.  R.  Co.,  92  Minn.  20,  99  N.  W.  365,  104  Am.  St.  Rep. 
659,  and  note.     See  further,  on  this  subject,  what  is  said  in  §  363  post, 
in    treating   attachments,   which    is    equally   applicable    to    executions. 


§    340  EXECUTIONS   AGAINST   PRINCIPAL  AND  SURETY  635 

Choses  in  Action. — No  mention  is  here  made  of  property 
which,  from  its  very  nature,  cannot  be  levied  on,  as  choses  in  ac- 
tion, which  is  treated  of  elsewhere.  It  is  sufficient  to  say  that  if 
an  execution  goes  into  the  hands  of  an  officer  to  be  levied  it 
creates  a  lien  on  such  property  which  ma.y  be  enforced  as  well 
after  the  death  of  the  debtor  as  before.  It  may  be  also  men- 
tioned in  this  connection  that  an  execution  creates  no  lien  on 
property  in  which  the  debtor  has  a  mere  contingent  interest  which 
may  never  be  of  any  value,  such,  for  example,  as  the  interest  of 
an  assured  in  a  policy  on  his  life,  which  is  dependent  for  its  ex- 
istence on  voluntary  payments  to  be  made  by  him  in  the  future. 
It  is  immaterial  that  the  assured,  in  a  given  contingency,  is  al- 
lowed to  surrender  his  policy  and  take  in  lieu  thereof  a  paid  up 
policy  for  a  different  amount.  This  would  involve  the  making  of 
a  new  contract,  and  ordinarily  a  creditor  can  only  subject  the  in- 
terest of  his  debtor  in  existing  contracts.  A  debt  which  has  a 
present  existence,  although  payable  in  the  future,  may  be  sub- 
jected to  the  lien  of  an  execution,  but  not  a  debt  which  rests  upon 
a  contingency  which  may  or  may  not  happen,  and  over  which  the 
court'  has  no  control.32 

§  340.    Executions  against  principal  and  surety. 

An  execution  may  be  levied  on  the  property  of  any  one  or  more 
of  the  execution  debtors,  regardless  of  their  relation  of  principal 
and  surety.  So  far  as  the  creditor  is  concerned,  all  of  the  debtors 
are  equally  bound  and  there  is  no  priority  among  them,  and  the 
whole  execution  may  be  levied  and  made  out  of  the  property  of 
a  surety,  although  the  principal  has  abundant  property  out  of 
which  it  might  be  made.  The  surety  is  powerless  to  prevent  this. 
The  creditor  is  under  no  obligation  to  look  to  the  principal  or  his 
property,  nor  to  exhaust  his  remedies  against  the  principal  before 
resorting  to  the  surety.  He  may  collect  his  debt  out  of  either.38 
The  rule  is  otherwise  in  equity. 

Moreover,  when  the  execution  is  satisfied  by  any  defendant,  it 

32.  Boisseau  v.  Bass,  100  Va.  207,  40  S.  E.  647;   Hicks  v.  Roanoke 
Brick  Co.,  94  Va.  741,  27  S.  E.  596. 

33.  Humphrey  r.   Hitt,  6  Gratt.  509;   Manson  v.   Rawlings,   112  Va. 
384.  71  S.  E.  564;  Knight  v.  Charter,  22  W.  Va.  422. 


636  EXECUTIONS  §  341 

is  functus  officio.  It  has  served  its  purpose,  and  though  paid  by  a 
surety,  there  can  be  no  substitution  or  subrogation,  at  law,  of  the 
surety  to  the  rights  of  the  creditor,  so  as  to  levy  the  execution 
thus  satisfied,  or  any  other  execution  issued  on  that  judgment,  on 
the  property  of  the  principal  to  reimburse  the  surety.34 

Subrogation  is  a  creature  of  equity,  and  is  wholly  unknown  to 
the  law.  The  judgment,  however,  is  not  deemed  satisfied  in 
equity,  and  the  surety  will,  in  equity,  be  subrogated  to  the  rights 
of  the  creditor,  so  as  to  enforce  the  lien  of  the  judgment  against 
the  real  estate  of  the  principal  to  the  exoneration  of  the  surety. 
"When  the  surety  pays  the  debt,  the  lien  of  the  execution  is  gone, 
but  a  court  of  equity  keeps  alive  the  lien  of  the  judgment  on  the 
real  estate  for  the  benefit  of  the  surety.35  At  law  the  surety's 
remedy  is  by  an  independent  action  against  the  principal,  so  as  to 
acquire  the  right  to  sue  out  an  execution  in  his  favor.  In  many 
States  there  are  statutes  for  determining  the  relation  (of  prin- 
cipal and  surety)  of  the  parties  in  the  original  action  when  it  does 
not  otherwise  appear,  and  allowing  subrogation  to  the  benefit  of 
the  execution.36 

If  there  is  more  than  one  defendant  in  an  execution,  the  6fficer 
is  required  in  Virginia  to  show  by  his  return  by  which  one  the 
execution  was  satisfied.  This  is  a  valuable  aid  in  disclosing 
whether  the  judgment  has  been  really  satisfied  by  the  party  pri- 
marily liable,  or  to  what  extent,  if  any,  the  judgment  is  still  a  sub- 
sisting lien  on  the  real  estate  of  any  one  or  more  of  the  judg- 
ment debtors.37 

§  341.    Duty  of  officer. 

The  first  duty  of  an  officer  who  receives  a  writ  of  fieri  facias 
for  execution,  is  to  endorse  on  it  the  year,  month,  day,  and  time 
of  day  he  receives  the  same.38  He  is  next  to  levy  it  on  the  per- 
sonal property  of  the  debtor  liable  to  levy,  and  where  the  writ 
so  requires  on  his  real  estate  also.  Having  made  the  levy,  he  is 

34.  11  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  715,  and  notes. 

35.  Simmons  v.  Lyles,  32  Gratt.  763. 

36.  Note,   Nelson  v.  Webster,  68  L.  R.  A.  513. 

37.  Code,  §  3591. 

38.  Code,   §   3589. 


§    342  THE  LEVY  637 

next  required  to  endorse  the  levy  on  the  fi.  fa.,  and  proceed  to 
make  the  money,  pay  it  over  to  the  plaintiff  and  make  due  return 
of  the  process  at  the  return-day  thereof.39 

§  342.    The  levy. 

The  mandate  of  the  writ  is  the  officer's  direction  and  author- 
ity for  what  he  is  to  do.  This  requires  that  "of  the  goods  and 
chattels  of — (defendant)  you  cause  to  be  made,"  etc.,40  and  a  day 
is  named  in  the  writ  when  the  sheriff  is  to  report  what  he  has  done 
— how  he  has  executed  the  writ.  This  is  called  the  return-day  of 
the  writ,  and  must  be  the  first  or  third  Monday  of  a  month  (rule 
day),  or  to  the  first  day  of  any  rules,  or  the  first  day  of  some  term 
of  the  court  from  which  the  writ  issues,  not  more  than  ninety 
days  from  its  date.41  The  sheriff,  having  received  the  writ  and 
endorsed  thereon  the  time  of  its  receipt,  is  required,  as  his  next 
duty,  to  make  the  money,  and  the  first  step  in  this  direction  is  to 
levy  it. 

What,  then,  constitutes  a  levy?  A  manucaption  of  property  in 
pursuance  of  the  writ  and  an  endorsement  of  that  fact  on  the 
writ  is  generally  sufficient,  but  is  that  necessary?  By  no  means. 

39.  Section  3591  of  the  Code  is  as  follows: 

"Upon  a  writ  of  fieri  facias,  the  officer  shall  return  whether  the 
money  therein  mentioned  is  or  cannot  be  made;  or  if  there  be  only 
part  thereof  which  is  or  cannot  be  made,  he  shall  return  the  amount 
of  such  pa'rt.  With  every  execution  under  which  money  is  recovered, 
he  shall  return  a  statement  of  the  amount  received,  including  his 
fees  and  other  charges,  and  such  amount,  except  the  said  fees  and 
charges,  he  shall  pay  to  the  person  entitled.  In  his  return  upon 
every  such  execution,  the  officer  shall  also  state  whether  or  not  he 
made  a  levy  of  the  same,  the  date  of  such  levy,  and  the  date  when 
he  received  such  payment  or  obtained  such  satisfaction  upon  the 
said  execution;  and  if  there  be  more  than  one  defendant,  from  which 
defendant  he  received  the  same.  Upon  the  return  of  said  writ 
of  fieri  facias  by  the  officer  to  the  clerk's  office  or  to  the  court  to 
which  it  is  returnable,  it  shall  be  the  duty  of  the  clerk  thereof  to 
enter  the  return  of  said  officer  on  the  execution  book." 

40.  In   Virginia   the   only   executions   which   can   be   levied   on    real 
estate  of  the  debtor  are  those  in  favor  of  the  Commonwealth.    Code, 
§  687. 

41.  Code,  §  3220. 


638  EXECUTIONS  §  342 

"It  is  not  essential  that  the  officer  make  an  actual  seizure.  If  he 
have  the  goods  in  his  view  and  power,  and  note  on  the  writ  the 
fact  of  his  levy  thereon,  this  will  in  general  suffice."42  It  is  not 
sufficient  to  have  them  in  his  view,  as  cattle  on  distant  hills,  or 
gdods  behind  bars  securely  locked,  or  possibly  goods  in  the  cus- 
tody of  an  officer  of  the  court,  he  must  also  have  power  to  take 
them.43  In  Davis  v.  Bonney,  cited  in  the  margin,  it  was  held  that 
property  in  the  hands  of  a  receiver  was  property  not  capable  of 
being  levied  on,  and  therefore  that  the  lien  of  the  execution  at- 
tached without  an  actual  levy.  It  is  doubtful  if  this  is  a  proper 
construction  of  §  3601  of  the  Code.  It  would  seem  that  the 
statute  referred  to  property  which  was  not  in  its  nature  physically 
capable  of  being  levied  on,  such  as  choses  in  action,  and  hence 
that,  in  order  to  preserve  the  lien  arising  by  the  issuance  of  the 
execution  and  placing  it  in  the  hands  of  the  officer,  it  is  necessary 
to  make  an  actual  levy.  This  probably  could  not  be  done  except 
by  consent  of  the  court  appointing  the  receiver,  and  while  this 
consent  might  be  given  merely  for  the  purpose  of  preserving  the 
lien,  it  would  not  be  for  any  other  purpose.  If  it  was  refused, 
then  the  lien  would  cease  with  the  return-day  of  the  execution.44 
As  to  tangible  property  not  in  the  custody  of  the  law,  it  is  not 
sufficient  for  the  officer  to  take  a  mere  constructive  possession,  or 
to  declare  that  he  has  taken  possession  and  levied  upon  goods 
when  he  is  physically  unable  to  exercise  dominion  over  the  goods, 
hence  if  a  debtor  has  his  goods  locked  in  his  storehouse  and  holds 
the  key  thereto  and  refuses  to  admit  the  officers,  he  cannot  be  said 
to  have  had  the  goods  in  his  view  and  power,  and  therefore 
cannot  make  a  levy.  Although  he  may  stand  on  the  outside  and 
declare  a  levy,  and  endorse  it  on  the  writ,  it  is  wholly  ineffectual 
as  a  levy,  and  if  the  owner  subsequently  admits  another  officer 
into  his  store-room,  who  makes  a  levy  on  the  goods,  it  is  superior 
to  the  supposed  levy  made  by  the  first  officer  on  a  prior  writ.45 

42.  Dorrier  v.  Masters,  83  Va.  459,  2  S:  E.  927;   Bullitt  v.  Winston, 
1  Munf.  269. 

43.  Dorrier  v.  Masters,  supra;  Davis  v.  Bonney,  89  Va.  755,  17  S.  E. 
229,  2  Va.  Law  Reg.  704. 

44.  3  Va.  Law  Reg.  23. 

45.  Meyer  v.  Mo.  Glass  Co.,  65  Ark.  286,  45  S.  W.  1062;  4  Va.  Law 
Reg.  253. 


§    342  THE  LEVY  639 

« 

Nor  is  a  mere  paper  levy  generally  sufficient  against  other  credit- 
ors or  third  persons. 

In  case  of  unwieldy  goods  which  the  officer  cannot  well  trans- 
port with  him,  and  likewise  growing  crops,  where  they  are 
subject  to  levy,  the  officer  should  go  to  the  place  where  the  goods 
are,  and  assume  control  over  them,  and  endorse  the  levy  on  the 
writ.  If  any  one  is  present  to  whom  notice  can  be  given,  he 
ought  to  give  notice  of  the  fact  that  he  makes  the  levy.  If  neither 
the  owner  nor  any  one  else  is  present,  while  probably  not  neces- 
sary, it  is  the  safer  course  to  give  notice  of  the  levy  to  the 
owner.46 

If  the  debtor  waives  an  actual  levy,  and  furnishes  the  officer 
with  a  list  of  his  property  subject  to  levy,  and  the  sheriff  en- 
dorses a  levy  thereof  on  the  writ,  this  would  probably  be  good 
as  against  the  debtor  himself,  but  there  is  serious  conflict  as  to 
the  rights  of  third  persons  (creditors  and  purchasers),  affected 
thereby.47 

If  after  levy  the  officer  permits  the  goods  to  remain  in  the 
possession  of  the  debtor,  he  does  so  at  his  own  risk,  and  is  liable 
for  resulting  loss.  It  would  be  a  punishable  offense  if  the  debtor 
fraudulently  removed  them.  In  Virginia  he  would  be  deemed 
guilty  of  larceny,  and  might  be  prosecuted  therefor.48 

In  making  the  levy  the  officer  may  enter  upon  the  premises  of 
the  debtor  without  being  a  trespasser.  He  cannot  break  open  the 
outer  doors  of  the  debtor's  dwelling  in  order  to  make  the  levy,  but 
he  may  break  open  the  inner  doors  of  the  dwelling,  or  outer  doors 
of  any  other  building  for  that  purpose,  and  after  levy  it  is  prob- 
able that  the  outer  doors  of  the  dwelling  may  be  broken  in  order 
to  obtain  the  property  for  the  purpose  of  removal  or  sale.4^  Un- 
like distress,  property  in  the  personal  possession  of  the  debtor,  as 
a  horse  that  he  is  riding,  or  a  watch  on  his  person,  may  probably 
be  levied  on.50 

46.  11  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  659. 

47.  See  cases  cited  in  note  11  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  655. 

48.  Code,  §  3712;   Duff  v.  Com.,  92  Va.  769,  23  S.  E.  643. 

49.  11   Am.   &   Eng.    Encl.    Law    (2nd   Ed.)    655;   4   Min.   Inst.   1024. 
As   to   powers   of   officer   levying   a   distress    warrant    for    rent,    see 
ante,  §  7. 

50.  2  Tucker's  Com.  362;  Green  v.  Palmer  (Cal.),  76  Am.  Dec.  492; 
but  see  11  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  658. 


640  EXECUTIONS  §  342 

The  levy  must  be  made  on  the  goods  and  chattels  of  the  debtor. 
Chattels  real,  though  not  susceptible  of  levy,  are  subject  to  the 
lien  of  a  fi.  fa.  as  well  as  personal  chattels,  and  growing  corn  may 
be  levied  on  after  October  fifteenth  of  any  year.  At  common  law 
emblements  were  liable  to  levy,  but  in  Virginia  it  is  provided  that : 
"No  growing  crop  of  any  kind  (not  severed)  shall  be  liable  to 
distress  or  levy  except  India  corn,  which  may  be  taken  at  any  time 
after  the  fifteenth  day  of  October  in  any  year,  and  also  except 
sweet  potatoes  and  Irish  potatoes  over  five  barrels  of  each  variety 
may  be  distrained  or  levied  upon  for  rent  after  the  same  have 
been  matured  sufficiently  to  sever,  or  to  market."51  Fixtures  are 
not  subject  to  levy.52 

An  execution  cannot  be  levied  on  Sunday.53'  A  creditor  may 
pursue  his  debtor  by  execution  at  law  and  by  bill  in  chancery  to 
subject  his  real  estate  at  the  same  time.54 

51.  Code,    §    904.      Cotton    may   be   levied    on    in   the    fields    in    the 
counties    of   Greensville    and    Sussex    on    and   after    the    15th    day    of 
September  in  any  year  to  satisfy  any  debt  collectible  under  the  law. 
Acts  1897-8,  p.  76.     The  levy  on  potatoes,  not  dug,  must  be  for  rent, 
nothing  else. 

52.  It  is  said  that  the  true  rule  in  determining  what  are  fixtures  in 
a    manufacturing    establishment,    where    the    land    and    buildings    are 
owned  by  the  manufacturer,  is  that  where  the  machinery  is  perma- 
nent  in   its   character   and   essential    to    the    purpose   for   which   the 
building  is  occupied,  it  must  be  regarded  as  realty  and  passes  with 
the    building,    and    whatever    is    essential    to    the    purpose    for    which 
the   building   is   used   will   be   considered   as    a   fixture,    although    the 
connection   between   them   be   such   that   it  may   be   severed   without 
physical    or    lasting    injury    to    either;    and    that    if    an    engine    and 
boiler  have   been   bought   by  the   owner   of  a   mill   and  hauled   upon 
his   grounds   into   the   mill   yard,   with   the   bona  fide   intention   of  at- 
taching them  to  the  mill,  though   not  yet  actually  attached  thereto, 
and   they   are   necessary   for  the  purpose    for  which   they   are   to   be 
used,  they  must  be  regarded  as  part  of  the  realty,  and  not  liable  to 
the   levy   of   an   execution   as   personal   property.     Furthermore,   if  a 
flood   washes   out   from   a   mill   the   engine,   boiler,   burners   and   mill 
irons,   which   were  fixtures  in  the  mill,  they  are  not  converted  into 
personalty,  and  when  thus  washed  out,  they  are  not  subject  to  the  levy 
of  an  execution.     Patton  v.  Moore,  16  W.  Va.  428;  Haskin  Wood  Co. 
v.  Cleveland  Co.,  94  Va.  439,  26  S.  E.  878. 

53.  Code,  §  898. 

54.  Price  v.  Thrash,  30  Gratt.  519,  527. 


§    342  THE  LEVY  641 

Money. — If  the  levy  be  upon  gold  or  silver  coin  it  is  to  be  ac- 
counted for  at  its  par  value,  but  if  on  bank  notes  and  the  cred- 
itor will  not  accept  them,  they  are  to  be  sold  as  other  chattels.55 

Partnership  Property. — There  is  one  species  of  property  about 
which  some  difficulty  may  arise  as  to  the  mode  of  making  levy 
and  sale,  and  that  is  the  interest  of  a  partner  in  the  partnership 
effects  where  the  execution  is  against  a  single  partner.  It  is 
said  that,  in  the  absence  of  any  statute  on  the  subject,  the  de- 
cided weight  of  authority  is  that  the  sheriff  may  take  exclusive 
possession  of  the  chattels  of  the  firm  and  retain  them  at  least  un- 
til the  day  of  sale.  The  levy,  however,  must  be  only  on  the  in- 
terest of  the  execution  debtor,  and  nothing  but  his  interest 
therein  can  be  sold,  and  the  purchaser  can  acquire  no  greater  in- 
terest than  the  debtor  had,  which  would  be  his  net  interest  after 
settlement  of  partnership  liabilities  and  the  adjustment  of  ac- 
counts between  the  partners.  The  purchaser  would  not  become 
a  partner  in  the  concern,  but  a  mere  co-tenant  of  the  goods.  The 
sale  would  ex  proprio  vigore  dissolve  the  firm,  but  the  purchaser 
would  have  a  right  to  demand  an  accounting,  and  the  payment  to 
him  of  the  debtor's  share  of  the  assets.  Upon  sale,  the  officer 
should  probably  deliver  possession  of  the  goods  to  the  purchaser 
and  the  other  members  of  the  firm  jointly,  the  rights  of  the  pur- 
chaser to  be  subject  to  the  rights  of  the  other  members  of  the 
firm  as  above  stated.  Whether  the  levy  must  be  on  all  of  the 
partnership  effects,  or  may  be  on  a  part  only,  is  a  subject  about 
which  the  authorities  are  not  in  harmony.56  The  Virginia  cases 
accord  with  the  above  statement  as  to  a  levy  and  sale  of  the 
partner's  interest  in  the  partnership  effects.57 

55.  Code,    §    3588.      It    is    presumed   that   the   gold   and    silver   coin 
referred   to    in   the    text   must   be   such   as   are   legal   tenders.     U.    S. 
treasury  notes  are  legal  tender,  and  a  creditor  cannot  refuse  to  ac- 
cept them.     As  to  what  money  is  a  legal  tender,  see  ante,  §  213,  note 
2.     See  also,  Steele  &  Co.  v.  Brown,  2  Va.  Cas.  246  as  to  the  right 
to  levy  on  money  in  possession  of  defendant,  and  also  as  to  the  right 
of  the  court   to   direct   money  in  hands   of  sheriff  to   be   applied   by 
him  to  a  fi.  fa.  in  his  hands  against  the  plaintiff  in  the  fi.  fa.  upon 
which  the  money  was  made. 

56.  Note,  57  Am.  St.   Rep.  435. 

57.  Shaver  v.  White,  6  Munf.  110;  Wayt  v.  Peck,  9  Leigh  440,  441. 
—41 


642  EXECUTIONS  §  342 

• 

Mortgaged  Property. — At  common  law,  mortgaged  personal 
property  could  not  be  taken  on  an  execution  against  the  mort- 
gagor, because,  as  was  said,  the  legal  title  was  not  in  him  and 
the  creditor  was  drawn  to  equity  for  relief.  The  same  rule  pre- 
vails in  West  Virginia,  and  probably  generally.58  In  Virginia  it 
has  been  held  that  if,  after  a  fair  application  of  the  property  con- 
veyed to  the  trust  debt  any  surplus  remains,  it  constitutes  a  fund 
to  which  other  creditors  may  resort,  but  that  it  cannot  be 
reached  by  execution  before  a  sale  under  the  deed  of  trust  "for 
it  is  an  equitable  and  contingent  interest,"  and  the  remedy  is  in 
equity  to  have  the  deed  of  trust  enforced,  and  the  residue  of  the 
purchase  price  applied  to  the  payment  of  the  execution.59  Pro- 
fessor Minor,  relying  upon  these  cases,  says :  "If  the  deed 
of  trust  is  not  avoided  by  any  fraud  or  illegality,  no  surplus 
which  may  be  likely  to  remain  to  the  debtor  after  satisfying  the 
object  of  the  trust  can  be  reached  by  the  fi.  /a.,  because  such 
interest  is  not  only  a  mere  equitable  subject,  which  of  itself 
would  not  prevent  its  being  levied  on  (Code,  §  2428),  but  be- 
cause it  is  contingent  and  could  not  be  sold  under  execution 
without  sacrifice."60  A  like  view  seems  to  be  maintained  by 
Professor  Lile  and  Mr.  Freeman.61  In  a  late  case,  however,  it 
has  been  held  in  Virginia  that  the  personal  property  covered  by 
a  deed  of  trust  is  subject  to  the  levy  of  a  fi.  fa.,  and  if  not  levied 
on  or  before  the  return  day,  the  lien  thereon  is  gone.62  The  lat- 
ter case,  however,  simply  announces  the  proposition  without  dis- 
cussion, or  citation  of  authority.63  A  chattel  mortgage  on  per- 

58.  11    Am.    &    Eng.    End.    Law    (2nd    Ed.)    624;    Doheny    v.    Atl. 
Dynamite   Co.,  41   W.   Va.   1,  23   S.   E.   525. 

59.  Claytor  v.   Anthony,   6   Rand.   285;    Coutts  v.   Walker,   2   Leigh 
268,  280. 

60.  4  Min.  Inst.   1018. 

61.  4  Va.  Law  Reg.  255,  256. 

62.  Spence  v.  Repass,  94  Va.  716,  27  S.  E.  583. 

63.  Section  2428  of  the  Code  is  as  follows: 

"Estates  of  every  kind,  holden  or  possessed  in  trust,  shall  be  sub- 
ject to  debts  and  charges  of  the  persons  to  whose  use  or  to  whose 
benefit  they  are  holden  or  possessed,  as  they  would  be  if  those  per- 
sons owned  the  like  interest  in  the  things  holden  or  possessed,  as 
in  the  uses  or  trusts  thereof." 

This   section  of  the  Code  was   in   effect  at   the   time   both    Claytor 


§    342  THE  LEVY  643 

sonal  property  thereafter  to  be  acquired  to  secure  advances 
made  and  to  be  made  is  good  as  to  property  acquired  after  the 
date  of  the  mortgage  against  a  subsequent  fi.  fa.  levied  thereon, 

v.  Anthony,  supra,  and  Coutts  v.  Walker,  supra,  were  decided  Mr. 
Minor,  in  the  quotation  given  above,  referring  to  this  section,  says 
that  the  fact  that  the  subject  is  equitable  would  not  prevent  its 
being  levied  on,  but  bases  his  conclusion  upon  the  ground  that 
the  interest  sought  to  be  recovered  is  contingent.  Notwithstanding 
the  weight  justly  due  to  the  authorities  which  have  been  hereinbefore 
cited,  it  is  not  perceived  why  the  interest  may  not  be  levied  on. 
It  is  expressly  declared  that  the  equitable  interest  shall  be  "subject 
to  debts  *  *  *  as  they  would  be  if  these  persons  owned  a  like 
interest  in  the  things  holden  or  possessed  as  in  the  uses  or  trust 
thereof."  If  equitable  interests  are  made  liable  to  debts  by  this 
statute  it  would  seem  that  the  liability  might  be  enforced  in  the 
usual  and  ordinary  way,  that  is  by  levy  of  a  fi.  fa.,  unless  there  is 
something  else  to  forbid  it.  It  is  difficult  to  understand  what  con- 
tingency there  is  about  the  interest  which  would  forbid  the  levy. 
The  property  is  charged  with  a  definite,  specific  debt — not  with  all 
the  debts  which  would  have  to  be  ascertained  by  some  outside  in- 
quiry— and  if  the  trust  debt  is  due,  there  is  no  reason  why  the  prop- 
erty may  not  be  sold,  the  trust  debt  paid,  and  the  residue  paid  over 
to  the  execution  creditor.  There  is  no  contingency  about  it  except 
as  to  what  the  property  will  bring.  That  fact  would  be  contingent 
if  there  was  no  deed  of  trust  on  it.  Certainly  nothing  could  be  more 
contingent  than  the  interest  of  a  partner  in  the  partnership  assets, 
and  if  this  can  be  subjected  by  the  levy  of  a  fi.  fa.,  which  we  have 
seen  can  be  done,  it  is  difficult  to  see  why  the  trust  property  may 
not  be  levied  on,  which  is  not  subject  to  any  contingency  except 
that  there  is  a  prior  lien  on  it  for  a  definite  and  specific  amount 
The  property  conveyed  and  in  the  possession  of  the  grantor  is  still 
his  property,  though  charged  with  a  lien,  and  the  character  of  the 
property,  as  such,  has  not  been  changed  by  giving  the  deed  of  trust. 
If  the  trust  debt  is  not  due,  the  trust  creditor  cannot  be  compelled 
to  collect  it  until  it  is  due,  but  that  affords  no  good  reason  why 
the  property  may  not  be  sold  subject  to  the  lien  of  the  deed  of  trust. 
The  rights  of  the  parties  are  all  well  ascertained,  and  all  the  creditors 
and  the  owner  of  the  property  know  what  these  rights  are,  and  can 
intelligently  bid  on  the  property  so  as  to  protect  their  rights,  and 
whether  the  property  be  sold  subject  to  the  deed  of  trust,  or  be 
sold  free  of  the  deed  of  trust  and  the  trust  debt  paid,  the  rights 
of  the  parties  in  interest  could  be  amply  protected.  Of  course,  it 
is  possible  that  the  property  might  not  bring  sufficient  to  pay 
the  trust  debt,  and  it  would  appear  somewhat  anomalous  to  enforce 
the  trust  lien  by  virtue  of  the  execution,  yet  as  nobody  can  be  hurt 


644 


EXECUTIONS  §    342 


to  the  extent  that  advances  were  made  prior  to  the  issuance  of 
the  fi.  /a.64 

The  subject  of  the  landlord's  lien  for  one  year's  rent  and  the 
right  to  levy  an  execution  on  property  removed  from  the  leased 
premises  has  already  been  discussed.65 

Shares  of  Stock. — The  shares  of  stock  in  a  joint  stock  com- 
pany are  generally  supposed  to  be  not  subject  to  the  lien  of  an 
execution  or  attachment,  in  consequence  of  the  inability  to  reach 
them ;  and  this  is  especially  true  where  the  owner  is  a  non-resi- 
dent; but  it  has  been  held  that  such  shares  in  a  company  incor- 
porated and  conducting  its  operations  in  whole  or  in  part  in 
this  state,  although  owned  by  a  non-resident,  are  the  subject  of 
an  attachment.  It  is  said  that  such  estate  may  be  considered,  for 
the  purpose  of  the  proceeding,  as  in  the  possession  of  the  corpo- 
ration in  which  the  shares  are  held,  and  such  corporation  may  be 
summoned  as  garnishee  in  the  case.  Such  shares  are  also  liable 
to  the  lien  of  an  execution.66 

The  execution  must  be  levied,  if  at  all,  on  or  before  the  return 
day.  It  cannot  be  levied  afterwards.  It  is  then  a  dead  process. 
But  if  levied  on  or  before  the  return  day,  the  property  levied 
on  may  be  sold  afterwards. 

If  a  plaintiff  dies  after  the  fi.  fa.  is  received  by  the  officer  to 
be  levied,  the  lien  is  fixed  by  such  delivery,  and  the  officer  may 
proceed  to  levy  and  sell,  indeed,  must  levy,  or  the  lien  will  be 
lost.  The  same  rule  applies  where  the  defendant  dies  under  simi- 
lar circumstances.  If  a  fi.  fa.  issues  (that  is,  is  made  out  ready 
\ 

by  such  an  arrangement,  it  would  seem  that  there  is  no  good 
reason  for  not  enforcing  the  lien  in  this  way.  The  delay  and  ex- 
pense of  resorting  to  a  court  of  equity  in  a  case  of  this  kind  would 
in  many  cases  amount  to  a  denial  of  justice,  and  the  courts,  looking 
to  the  substance  of  things  rather  than  to  mere  form,  should  afford 
to  creditors  this  easy  and  speedy  method  of  enforcing  the  collection 
of  the  execution.  The  reasonableness  of  this  view  is  offered  as  an 
apology  for  the  presumption  of  differing  from  such  able  authorities 
on  the  other  side.  It  follows  necessarily  that  the  conclusion  in 
Spence  v.  Repass,  supra,  is  approved. 

64.  First  Nat'l  Bank  v.  Turnbull,  32  Gratt.  695. 

65.  Ante,  §  13. 

66.  Ches.  &  O.   R.  Co.  v.  Paine  &  Co.,  29  Gratt.  502;  Lipscomb  v. 
Condon,  56  W.  Va.  416,  49  S.   E.  392. 


§    342  THE  LEVY  645 

for  delivery)  in  the  lifetime  of  the  defendant,  but  is  not  actu- 
ally delivered  to  the  officer  to  be  executed  until  after  the 
defendant's  death,  the  officer  may  probably,  as  against  the  defend- 
ant or  his  personal  representative  (if  neither  creditors  or  pur- 
chasers are  affected  thereby)  proceed  to  levy.  The  language  of 
the  statute  relating  to  tangible  personal  property  is  that  the  fi.  fa. 
"as  against  purchasers  for  valuable  consideration  without  no- 
tice, and  creditors,  shall  bind  what  is  capable  of  being  levied  on 
only  from  the  time  it  is  delivered  to  the  officer  to  be  executed."67 
If,  after  property  has  been  levied  on,  it  is  lost  in  consequence 
of  the  misconduct  or  neglect  of  the  officer  making  the  levy,  the 
fi.  fa.  is  to  that  extent  satisfied,  and  the  plaintiff  must  look  to  the 
officer  and  his  sureties  for  the  loss  thereby  sustained.68 

Several  Executions. — If  several  writs  be  delivered  to  the  of- 
ficer at  the  same  time,  they  are  to  be  satisfied  ratably,  if  at  dif- 
ferent times,  they  are  to  be  satisfied  in  the  order  of  delivery,69 
regardless  of  the  order  of  levy.  If  a  levy  be  made  of  several  fi. 
fas.,  and  a  third  person  claims  the  property,  or  a  doubt  arises 
as  to  the  liability  of  the  property  to  levy,  the  officer  may  require 
of  the  creditors  an  indemnifying  bond  for  his  protection,  and  if 
it  be  not  given  in  a  reasonable  time,  he  may  release  the  levy,70 
but  if  some  of  the  creditors  give  the  bond  and  others  refuse,  and 
the  officer  sells  under  the  protection  guaranteed  by  such  bond, 
the  proceeds  are  to  be  paid  to  the  indemnifying  creditors  in  the 
order  of  dates  of  receipt  by  him  of  their  several  fi.  fas.,  and  no 
part  of  the  money  is  to  be  paid  to  the  other  creditors,  although 
their  executions  may  have  been  first  received.  The  officer,  how- 
ever, is  not  obliged  to  require  such  bond.  He  may,  in  his  own 
name,  institute  interpleader  proceedings  and  have  the  title  to  the 
property  tried,  and  if  decided  againsf  the  claimant  of  the  prop- 
erty, the  officer  will  proceed  to  sell  the  property  and  pay  off  the 
executions  in  the  order  in  which  they  were  received  by  him.71 

67.  Turnbull  v.   Claiborne,   3   Leigh   392;   4   Min.    Inst.    1025. 

68.  Walker  v.  Com.,  18  Gratt.  13. 

69.  Code,  §  3590. 

70.  Code,  §§   3001,  3002. 

71.  Edmunds  v.  Hobbie  Piano  Co.,  97  Va.  588,  34  S.  E.  472. 


546  EXECUTIONS  §§  343-344 

§  343.    Payments  to  and  disbursements  by  officer. 

So  long  as  the  execution  is  alive,  that  is,  on  or  before  the  re- 
turn day,  or  after  the  return  day  if  previously  leined,  the  officer 
charged  with  "the  collection  of  the  fi.  fa.  may  receive  payment 
from  the  execution  debtor,  but  if  not  so  levied  the  officer  has 
no  right  to  receive  payment  after  the  return  day,  and  if  made 
and  not  accounted  for,  the  sureties  of  the  officer  are  not  bound 
for  the  money,  and  the  rights  of  the  creditor  are  unaffected. 
The  right  of  the  officer  to  receive  payment  results  from  his  right 
to  levy  and  sell  the  debtor's  property,  and  the  consequent  right 
of  the  debtor  to  relieve  his  property  from  sale.  So  long  as  the 
right  to  sell  continues,  the  right  to  receive  payment  remains,  but 
no  longer.72 

When  the  officer  receives  money  under  an  execution,  it  is  his 
duty  to  pay  it  over  to  the  execution  creditor,  but  if  the  creditor 
lives  in  another  county  or  corporation,  the  officer  is  not  bound 
to  go  out  of  his  county  to  pay  the  money  to  the  creditor,  nor  can 
any  action  be  maintained  against  the  officer  and  his  sureties  for 
the  money  so  collected  until  demand  therefor  has  been  made 
upon  the  officer  in  his  county  or  corporation  and  been  refused 
by  him.73 

§  344.    Payment  by  officer  for  debtor. 

At  common  law  the  payment  of  a  fi.  fa.  utterly  extinguished 
the  debt  and  every  security  for  it,74  and  equity  could  not  prevent 
this  unless  there  were  some  other  equitable  ground  for  interfer- 
ence, and  if  an  officer  paid  an  execution  without  assignment  or 
agreement  to  assign,  the  execution  was  dead  as  a  security  for 

the  debt.75 

The  officer,  however,  may  purchase  a  debt  in  his  hands  for  col- 
lection by  execution  if  he  acts  bona  fide.  The  creditor  holds 

72.  Grandstaff  v.   Ridgely,  30  Gratt.   1;   Cockerell  v.  Nichols,  8   W. 

Va.  159. 

73.  Code,  §  3596;  Grandstaff  v.  Ridgely,  30  Gratt.  1. 

74  Clevinger  v.  Miller,  27  Gratt.  740,  741. 

75  Clevinger  v.  Miller,  supra;    Hall  v.  Taylor,  18  W.  Va.  544.     See 
also    Sherman  v.  Shaver,  75  Va.   1.     But  see,   Feamster  v.   Withrow, 
12  W.  Va.  611;  Beard  v.  Arbuckle,  19  W.  Va.  135;  Neely  v.  Jones,  16 
W.  Va.  625. 


§  345 


SAI,E   OF   PROPERTY 


647 


the  title  and  may  transfer  it  to  whom  he  will,  and  it  makes  no 
difference  that  the  advance  is  made  at  the  instance  of  the  debtor, 
provided  there  is  no  intention  to  extinguish  the  debt  and  the  ex- 
ecution is  assigned  as  a  continuing  security.76 

§  345.    Sale  of  property. 

Supposing  the  property  levied  on  to  be  the  property  of  the  ex- 
ecution debtor,  if  not  replevied,  as  it  generally  may  be,  it  is  the 
officer's  duty  to  sell  it.  Bub  before  making  sale  it  is  the  duty 
of  the  officer  to  advertise  the  time  and  place  of  sale  by  notice 
posted  near  the  residence  of  the  owner  and  at  two  or  more  pub- 
lic places  in  the  officer's  county  or  corporation  at  least  ten  days 
before  the  sale.  While  the  officer  may  remove  the  property  and 
sell  it  at  any  place  in  the  neighborhood,  or  at  the  court  house, 
yet  the  practice  is,  in  Virginia,  to  permit  it  to  remain  on  the 
premises  of  the  debtor  until  the  day  of  sale,  and  then  sell  it  there, 
in  order  to  save  expense.  The  officer  may  deduct  expenses  of 
removing,  or  the  keep  of  property  from  the  proceeds  of  sale.  If 
the  property  levied  on  be  horses,  mules,  or  work  oxen,  they  must 
be  advertised  for  thirty  days  by  hand  bills  posted  at  the  front 
door  of  the  court  house,  and  at  five  or  more  public  places  in  the 
county  or  corporation  of  such  officer,  and  if  it  be  in  the  county, 
these  places  must  be  at  least  two  miles  apart.  But  the  parties 
may,  at  or  before  the  time  for  advertising  the  sale,  in  writing  au- 
thorize the  officer  to  dispense  with  the  provision  for  the  thirty 
days'  notice  and  also  with  the  provision  that  the  posting  must  be 
at  least  two  miles  apart.77  If  the  property  levied  on  be  perishable, 
or  expensive  to  keep,  the  court  from  whose  clerk's  office  the  fi. 
fa.  issued,  or  the  judge  thereof  in  vacation,  may,  upon  the  appli- 
cation of  any  party,  on  reasonable  notice  to  the  adverse  party, 
his  agent  or  attorney,  order  a  sale  to  be  made  upon  such  notice 
less  than  ten  days  as  to  such  court  or  judge  may  seem  proper. 

The  sale  is  for  cash.  When  made,  the  officer  should  pay  the 
creditor  the  amount  of  his  execution,  and  make  return  of  the 
writ  to  the  clerk's  office  from  which  it  issued,  in  the  manner 
pointed  out. in  the  next  section. 

76.  Rhea  v.   Preston,  75   Va.   757;   Hill  v.   McCullough,  20   Ga.   837. 

77.  Code,  §§  906,  907. 


648  EXECUTIONS  §  346 

The  officer  cannot  purchase  at  a  sale  made  by  him  under  fi.  fa., 
but  the  plaintiff  in  the  execution  may  purchase,  and  is  regarded 
as  a  bona  fide  purchaser  if  other  requisites  therefor  exist.78 

§  346.    The  return. 

Formerly  some  doubt  existed  in  Virginia  as  to  what  consti- 
tuted a  sufficient  return  of  the  execution  to  keep  the  judgment 
alive,  but  the  Code  now  provides  that  "any  return  by  an  officer 
on  an  execution,  showing  that  the  same  has  not  been  satisfied, 
shall  be  a  sufficient  return  within  the  meaning  of  the  statute."7* 
A  return  on  the  process  is  defined  as  "a  short  official  statement 
of  the  officer  endorsed  thereon  of  what  he  has  done  in  obedience 
to  the  mandate  of  the  writ,  or  why  he  has  done  nothing."  In 
the  absence  of  the  date  or  other  evidence  showing  when  the  re- 
turn of  an  officer  on  a  writ  was  made  it  is  presumed  to  have  been 
made  at  a  time  when  he  had  a  right  to  make  it  and  in  due  time, 
as  the  prima  facie  presumption  is  that  the  officer  has  done  his 
duty.  The  validity  of  the  return,  however,  of  the  officer  on  a 
writ  of  fieri  facias  is  not  affected  by  the  fact  that  the  writ  is  not 
returned  by  the  officer  until  after  the  return  day.  While  the 
record  is  incomplete  until  the  writ  is  returned,  yet,  when  made, 
the  return  is  competent  evidence  of  the  facts  therein  stated,  and 
the  parties  are  entitled  to  the  benefit  of  their  legal  effect.  The 
return  should  be  made  at  the  return  day,  but  may  be  made  be- 
fore or  afterwards.  A  return  upon  an  execution  which  the  of- 
ficer has  a  right  to  make  is  conclusive  between  the  parties,  and 
they  have  the  right  to  compel  the  officer  to  make  it,  but  neither 
of  the  parties  can  be  deprived  of  the  benefit  of  the  return  by  the 
failure  of  the  officer  to  make  it  at  the  return  day.80  The  statute 
in  Virginia  declares  what  the  return  of  an  officer  on  an  execution 
shall  be.81  The  signature  of  the  officer,  however,  to  the  return 
is  merely  intended  to  authenticate  it,  but  is  no  part  of  the  return, 
and  may  be  added  at  any  time.82 

78.  Note,  79  Am.  St.   Rep.  948. 

79.  Code,  §  3577. 

80.  Rowe   v.   Hardy,   97   Va.   674,   34   S.    E.   625;    Bullitt  v.    Winston, 
1   Munf.  269. 

81.  See  §  3591  of  the  Code,  copied  in  note  39,  page  637,   ante. 

82.  Slingluff  v.  Collins,  109  Va.  717,  64  S.  E.   1055. 


§    346  THE    RETURN  649 

Amendment  of  Returns. — A  return  which  has  been  made  by 
an  officer  cannot  thereafter  be  amended  by  him  except  upon  mo- 
tion to  the  court  from  which  it  issued,  and  after  notice  to  the  par- 
ties interested.88  But  courts  are  liberal  in  allowing  amend- 
ments of '  returns  in  proper  cases  so  as  to  conform  to  the 
truth,  and  the  amendment,  when  made,  has  the  same  effect 
as  though  it  were  the  original  return,  where  the  rights  of  third 
persons  have  not  intervened,  and  it  does  not  appear  that  in-, 
justice  can  result  to  any  one.  There  is  no  specific  time  within 
which  the  return  must  be  amended,  but  after  a  great  lapse 
of  time  an  amendment  should  be  permitted  with  caution,  and 
in  no  case  should  it  be  allowed  unless  the  court  can  see  that 
it  is  in  furtherance  of  justice.84  An  amendment  may  be  per- 
mitted', even  after  an  action  has  been  commenced  founded  on 
the  original  return,85  although  the  proposed  amendment  be  incon- 
sistent with  the  original  return  and  takes  away  the  foundation 
of  the  suit  or  motion.  The  return  may  be  amended  by  a  different 
deputy  from  the  one  who  made  the  original  return.86  The 
amendment  may  be  made  in  vacation  as  well  as  in  term  time,  as 
the  right  to  amend  is  incidental  to  the  right  expressly  given  to 
hear  in  vacation  a  motion  to  quash  an  execution.87  It  seems  that 
a  return  may  be  made  before  the  return  day,  and  that  a  return 
of  no  effects  before  the  regular  return  day  of  the  writ  against 

defendant  who  is  notoriously  insolvent  may  be  made.88 

Title  of  Purchaser. — The  rule  caveat  einptor  generally  applies 
to  all  sales  under  executions.  The  sale  by  the  officer  simply 
passes  the  title  of  the  execution  debtor.  By  virtue  of  the  execu- 
tion the  officer  has  authority  to  sell,  but  no  greater  title  is  con- 
ferred on  the  purchaser  than  the  defendant  himself  had  when 
no  indemnifying  bond  has  been  given.  Where  property  has  been 
levied  on  which  is  claimed  by  a  third  party,  provision  is  made  for 

83.  Hammen  v.   Minnick,  32   Gratt.   249,   251. 

84.  Slingluff  v.  Collins,   109  Va.  717,  64  S.   E.  1055. 

85.  Smith  v.  Triplett,  4  Leigh  590;  Wardsworth  v.  Miller.  4  Gratt. 
99;   Stone  r.   Wilson,   10   Gratt.   529,  533. 

86.  Stone  v.  Wilson,  supra;  but  see  Carr  v.  Meade,  77  Va.  142. 

87.  Walker  z-.  Com.,  18  Gratt.  13. 

88.  Slingluff  v.  Collins,  supra;  Findley  v.  Smith,  42  W.  Va.  299,  26 
S.  E.  370. 


650  EXECUTIONS  §  347 

requiring  the  plaintiff  in  the  execution  to  execute  an  indemnifying 
bond  with  condition,  among  other  things,  "to  warrant  and  defend 
to  any  purchaser  of  the  property  such  estate  or  interest  therein 
as  is  sold."89  and  where  a  sale  is  made  under  such  an  indemnify- 
ing bond  and 'the  property  is  afterwards  recovered  from  the 
purchaser,  he  may  maintain  an  action  on  the  bond  in  the  name 
of  the  officer  for  his  benefit  to  recover  such  damages  as  he  has 
sustained  in  consequence  of  the  property  being  taken  from  him 
by  title  paramount.90 

§  347.    Delivery  bond. 

If  for  any  reason  the  debtor  desires  to  retain  possession  of  his 
property  which  has  been  levied  on,  and  to  prevent  an  immediate 
sale  thereof,  he  is  permitted  to  do  so  upon  delivering  to  the  officer 
a  forthcoming  or  delivery  bond  with  good  security,  the  effect  of 
which  is  to  suspend  all  further  proceedings  on  the  fi.  fa.  The 
language  of  the  statute  is  that  the  officer  "may  take  from  the 
debtor  a  bond,"  but  may  in  this  connection  means  must,  and  the 
officer  is  obliged  to  accept  a  proper  bond  if  tendered.  When  ac- 
cepted, the  property  remains  "in  the  possession  and  at  the  risk  of 
the  debtor."91  The  amount  of  the  bond  is  not  fixed  by  statute, 
but  it  is  usually  in  a  penalty  double  the  amount  of  the  fi.  fa. 
(principal,  interest  and  costs,  including  the  officer's  commissions) 
though  logically  it  should  be  in  a  penalty  double  the  value  of  the 
property  levied  on,  and  is  payable  to  the  creditor.  It  recites  the 
issuing  of  the  fi.  fa.,  the  amount  thereof  (including  the  officer's 
fee  for  taking  the  bond,  his  commissions  and  other  lawful  charges, 
if  any)  the  levy,  and  an  enumeration  of  the  property  on  which 
levied,  and  must  be  with  sufficient  surety.  The  bond  further  re- 
cites the  agreement  of  the  debtor  (to  deliver  or)  to  have  the 
property  levied  on  forthcoming  (hence  the  designation  forth- 
coming bond  or  delivery  bond),  at  a  certain  time  and  place  named 
in  the  bond,  to  be  sold  to  satisfy  the  fi.  fa.,  and  contains  a  con- 
dition that  if  the  property  is  forthcoming  at  the  time  and  place 
mentioned,  the  bond  shall  be  void,  else  remain  in  full  force  and 

89.  Code,  §  3001. 

90.  Code,  §  3003. 

91.  Code,  §  3617. 


DELIVERY  BOND 


651 


virtue.  If  any  of  the  property  levied  on  is  not  forthcoming  at 
the  time  and  place  mentioned,  the  bond  is  said  to  be  forfeited, 
unless  the  failure  to  deliver  was  occasioned  by  act  of  God,  or 
probably  inevitably  accident. 

"With  respect  to  the  parties  to  the  forthcoming  bond,  the 
property  is  at  their  risk,  and  they  undertake,  that  it  shall  be  de- 
livered. In  case  of  a  non-delivery  of  any  part  of  such  property, 
the  bond  is  considered  forfeited;  it  is  to  have  the  force  of  a 
judgment  by  the  terms  of  the  act,  and  an  execution  is  to  go  for 
the  whole.  It  is  true  indeed,  that  the  sheriff  may  sell  the  part 
delivered,  and  credit  the  amount  thereof  on  the  execution.  (1 
Wash.  274,  Pleasants  v.  Lewis.)  But  subject  to  that  exception, 
the  parties  to  the  bond  are  to  submit  to  the  judgment,  unless  there 
be  some  particular  circumstances  in  their  case,  to  be  relied  on, 
for  their  relief,  other  than  that  of  the  mere  non-delivery  of  the 
property.  To  go  into  the  circumstances,  which  prevented  the 
delivery  of  the  property,  would  throw  upon  the  creditor  an  in- 
quiry to  which  he  is  an  utter  stranger,  and  repeal  that  provision 
of  the  act  which  says  the  property  restored  under  the  forthcoming 
bond  is  to  be  at  the  risk  of  the  seller."92 

If  on  the  day  for  delivery  of  the  property,  the  parties  are  un- 
able to  deliver  a  part  of  the  property,  and  such  inability  is  oc- 
casioned by  the  act  of  God,  or  probably  by  the  destruction  of 
the  property  by  inevitable  accident,  but  the  parties  deliver  the 
residue  of  the  property,  then  there  is  no  forfeiture  of  the  bond, 
but  the  officer  should  sell  what  is  delivered  and  apply  it  to  the 
execution.  If  the  residue  of  the  property  is  not  delivered,  the 
whole  bond  is  forfeited  for  failure  to  deliver  that.  If  all  the 
property  is  delivered,  of  course  there  is  no  forfeiture.  If  part 
of  it  is  delivered,  and  there  is  a  failure  to  deliver  a  part  for  some 
cause  other  than  the  act  of  God  or  inevitable  accident,  the  offi- 
cer should  sell  what  is  delivered  and  apply  the  proceeds  to  the 
execution,  and  return  the  bond  as  forfeited  for  non-delivery  of 
the  residue.93 

When  a  bond  is  forfeited,  the  lien  of  the  execution  on  the 

92.  Roane,  Judge,   in  Cole  v.   Fenwick,   Gilmer   138,   139;   Pleasants 
v.  Lewis,  1  Wash.  273. 

93.  Cole  v.  Fenwick,  supra. 


652  EXECUTIONS  §  347 

property  levied  on  is  extinguished,94  and  it  is  the  duty  of  the 
officer  within  thirty  days  to  return  it,  with  the  execution,  to  the 
clerk's  office  of  the  court  from  which  the  execution  issued,  and 
as  against  such  of  the  obligors  as  are  alive  when  it  is  for- 
feited and  so  returned  "it  shall  have  the  force  of  a  judgment," 
but  no  execution  can  issue  thereon.95  The  plaintiff  may  sue  on 
the  bond,  but  the  general  practice  is  for  the  creditor  to  give  (as 
he  may  do)  ten  days'  notice  in  writing  to  all  of  the  obligors 
that  on  a  certain  day  of  the  next  term  of  the  court  he  will  move 
the  court  for  an  award  of  execution  thereon. 

It  is  said  that  the  following  defences  may  be  made  to  this 
motion  :96 

1.  Non  est  factum. 

2.  Satisfaction  of  original  judgment  and  costs  since  accrued. 

3.  Tender  of  property  as  stipulated  in  bond. 

4.  Property  levied  on  was  exempt. 

5.  Impossibility  of  performance,  without  fault  of  obligor.97 

6.  Seizure  of  property  by  title  paramount,  as  where  the  prop- 
erty levied  on  is  taken  out  of  the  possession  of  the  debtor  by  legal 
process  and  neither  he  nor  his  surety  are  able  to  deliver  it  in 
conformity  with  the  terms  of  the  bond.98 

7.  Waiver  of  performance. 

8.  Fraud  in  procurement  of  bond. 

9.  Where  before  the  time  fixed  for  the  delivery  of  the  prop- 
erty a  supersedeas  is  granted  to  the  original  judgment.     This 
would  not  be  a  valid  defence,  if  the  supersedeas  were  awarded 
after  the  bond  had  been  forfeited.99 

"A  forfeited  forthcoming  bond  stands  as  a  security  for  the 
debt,  and  though  while  in  force  no  execution  can  be  taken  out 
or  other  proceeding  be  had  at  law  to  enforce  the  original  judg- 
ment, yet  the  bond  is  not  an  absolute  satisfaction.  For  if  it  be 
faulty  on  its  face,  or  the  security  when  taken  be  insufficient,  or 

94.  Lusk  v.  Ramsay,  3  Munf.  417. 

95.  Code,    §    3619. 

96.  13  Am.  &  Eng.  End.  Law  (2nd  Ed.)   1151-2. 

97.  Lusk  v.  Ramsay,  supra. 

98.  Lusk  v.   Ramsay,  supra. 

99.  Rucker  v.  Harrison,  6  Munf.  181;   Spencer  v.  Pilcher,  10  Leigh 
490. 


§    348  INTERPLEADER  PROCEEDINGS  653 

the  obligors,  though  solvent  when  the  bond  is  taken,  become 
insolvent  afterwards,  the  plaintiff  may,  for  these  or  other  good 
reasons,  on  his  motion,  have  the  bond  quashed,  and  be  restored 
to  his  original  judgment.  And  though  the  bond  be  not  quashed, 
if  it  appear  that  it  may  properly  be,  a  court  of  equity,  which  looks 
to  substance  rather  than  to  form,  and  when  occasion  requires  it 
treats  that  as  done  which  ought  to  be  done,  will  regard  the 
bond  as  a  nullity,  and  the  original  judgment  as  in  full  force."1 
When  a  fi.  fa.  is  issued  on  this  bond,  it  is  provided2  that  it 
shall  be  endorsed  "no  security  is  to  be  taken,"  which  means  that 
the  officer  is  to  go  on  and  make  the  money  without  further  delay. 

§  348.    Interpleader   proceedings. 

The  officer  may  levy  the  fi.  fa.  on  property  claimed  by  a  third 
person,  and  the  method  of  procedure  is  somewhat  different  when 
the  property  is  in  the  possession  of  the  execution  debtor  and 
when  it  is  not.  If  the  property  is  in  the  possession  of  the  execu- 
tion debtor  and  is  claimed  by  a  third  person,  or  is  claimed  to  be- 
long to  a  third  person,  the  officer  is  required  to  proceed  to  execute 
the  same,  notwithstanding  such  claim,  unless  the  claimant  of 
the  property  will  give  a  suspending  bond  with  good  security  and 
shall  within  thirty  days  after  such  bond  is  given  proceed  to  have 
the  title  to  said  property  settled  and  determined  in  the  manner 
pointed  out  in  the  chapter  on  Interpleader.  If  the  claimant  fails 
to  give  the  suspending  bond,  or,  having  given  it,  fails  to  institute 
proceedings  to  try  the  title  to  the  property  within  the  time  pre- 
scribed by  law,  it  is  conclusively  presumed  that  the  property  is 
the  property  of  the  party  in  possession,  and  the  officer  is  to  go  on 
and  execute  the  writ.  Here  no  indemnifying  bond  is  required 
of  the  plaintiff.  Pending  the  trial  of  the  title  to  the  property,  if 
the  claimant  wishes  the  property  to  remain  in  the  same  possession 
as  before,  this  may  be  accomplished  by  giving  a  delivery  bond.3 

When  the  property  is  not  in  the  possession  of  the  execution 
debtor  and  is  claimed  by  a  third  party,  the  officer  may  either 

1.  Rhea  v.   Preston,  75  Va.  757,  758. 
«.  Code,  §  3624. 
3.  Code,  §  3001. 


654  EXECUTIONS  §  348 

himself  institute  interpleader  proceedings  to  try  the. title4  to  the 
property  or  require  of  the  plaintiff  an  indemnifying  bond.  If 
the  indemnifying  bond  is  not  given,  the  officer  may  release  the 
levy  if  it  has  already  been  made,  or  refuse  to  make  the  levy 
if  one  has  not  been  previously  made.5  If  the  indemnifying  bond 
is  given,  the  officer  may  proceed  with  the  sale  and  is  protected 
by  the  bond,  but  if  the  claimant  of  the  property  desires  to  have 
the  title  thereto  tested,  he  may  give  to  the  officer  a  bond  with 
good  security  in  a  penalty  equal  to  double  the  value  thereof,  pay- 
able to  the  officer  with  condition  to  pay  all  persons  who  may  be 
injured  by  suspending  the  sale  thereof  until  the  claim  thereto 
can  be  adjusted,  such  damage  as  they  may  sustain  by  such  sus- 
pension.6 Thereafter  either  the  claimant  of  the  property,  or 
the  party  issuing  the  process,  may  institute  interpleader  proceed- 
ings to  determine  the  title  to  the  property,7  the  proceedings  in 
which  are  hereinbefore  set  forth  in  Chapter  XVI. 

If  the  plaintiff  should  indemnify  the  officer  and  he  should  sell 
the  property  and  pay  the  money  over  to  the  plaintiff  and  return 
the  fi.  fa.  satisfied,  and  the  property  sold  under  the  execution 
or  its  value,  should  be  recovered  from  the  obligors  in  the  in- 
demnifying bond  given  before  such  sale,  or  from  a  purchaser 
haying  a  right  of  action  on  such  bond,  the  plaintiff's  execution 
would  be  satisfied,  at  least  to  the  extent  of  the  value  of  the  prop- 
erty sold,  and  yet  he  would  be  liable  to  the  same  extent  by 
virtue  of  the  terms  of  the  indemnifying  bond.  It  is  now  pro- 
vided by  statute  that  "the  person  having  such  execution,  or  his 
personal  representative,  may  by  motion,  after  reasonable  notice 
to  the  person  or  the  personal  representative  of  the  person  against 
whom  the  execution  was,  obtain  a  new  execution  against  him 
without  credit  for  the  amount  for  which  the  property  was  sold 
upon  the  former  execution,"  but  such  motion  must  be  made 
within  five  years  after  the  right  to  make  the  same  has  accrued.8 

4.  Code,  §  2999. 

5.  Code,  §  3001. 

6.  Code,  §  3003. 

7.  Code,  §§  2999,  3000. 

8.  Code,  §  3598. 


THE  LIEN  AND  ITS  COMMENCEMENT  655 

§  349.    The  lien  and  its  commencement. 

A  judgment  is  a  lien  on  real  estate  only  or  some  interest 
erein,  legal  or  equitable,  and  is  enforceable  only  by  a  bill  in 
equity.  An  execution  is  a  lien  on  personal  property  only,  except 
as  hereinbefore  stated  and  the  methods  of  its  enforcement  are 
pointed  out  in  this  chapter.  In  Virginia  a  writ  of  fieri  facias 
is  a  lien  on  every  species  of  personal  property,  tangible  and  in- 
tangible, and  whether  capable  of  being  levied  on  or  not. 

At  common  law,  the  lien  of  the  fi.  fa.  attached  from  the  teste 
of  the  writ,  which  was  always  some  day  during  the  term  at 
which  the  judgment  was  rendered,  but  this  was  changed  by  the 
statute  of  frauds9  so  as  to  make  it  attach  from  the  time  the  writ 
was  delivered  to  the  officer.  The  common  law  rule  still  prevails 
in  Tennessee,  but  it  has  been  changed  more  or  less  in  all  the  other 
states.10  At  common  law  an  execution  was  not  a  lien  on  choses 
in  action  at  all,  nor  was  it  in  Virginia  until  the  enactment  of 
the  Code  of  1849,  taking  effect  July  1,  1850;  nor  was  any  pro- 
vision made  for  reaching  this  most  valuable  species  of  property 
save  by  garnishment.  It  is  now  provided  by  statute  in  Virginia 
that  the  writ  of  fieri  facias  may  be  levied  as  well  on  current 
money  and  banknotes  as  on  the  goods  and  chattels  of  the  execu- 
tion debtor  (except  what  is  exempt  from  levy  under  Chapter 
178),  and  as  against  purchasers  for  valuable  consideration  with- 
out notice,  and  creditors,  shall  bind  what  is  capable  of  being  lev- 
ied on  only  from  the  time  it  is  delivered  to  the  officer  to  be  exe- 
cuted,11 and,  furthermore,  that  every  writ  of  fieri  facias  shall, 
in  addition  to  the  lien  just  mentioned  on  what  is  capable  of  being 
levied  on,  "be  a  lien  from  the  time  it  is  delivered  to  a  sheriff 
or  other  officer  to  be  executed,  on  all  the  personal  estate  of  or  to 
which  the  judgment  debtor  is  or  may  afterwards  and  before  the 
return  day  of  said  writ,  become  possessed  or  entitled,  and  which 
is  not  capable  of  being  levied  on  under  the  said  section  [just  above 
referred  to]  except  such  as  is  exempt  under  the  provisions  of 
Chapter  178,  and  except  that,  as  against  an  assignee  of  any  such 
estate  for  valuable  consideration,  or  a  person  making  a  payment 

9.  29  Car.  II.  Ch.  3,  §  16. 

10.  11  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  669-670. 

11.  Code,  §  3587. 


656  EXECUTIONS  §  350 

to  the  judgment  debtor,  the  lien  by  virtue  of  this  section  shall 
not  affect  him,  unless  he  had  notice  thereof  at  the  time  of  the 
assignment,  or  payment,  as  the  case  may  be."12  In  Virginia,  as 
seen,  the  lien  of  a  fi.  fa.  as  to  all  kinds  of  personal  property, 
whether  capable  of  being  levied  on  or  not,  commences  from  the 
time  the  fi.  fa.  is  delivered  to  the  office  to  be  executed.  It  is  to 
be  observed  that  it  is  the  time,  not  the  date,  and  in  order  to  fix 
this  time  definitely  and  officially  the  first  thing  an  officer  is  di- 
rected to  do  after  receiving  a  fi.  fa.  is  to  endorse  on  it  the  year, 
month,  day  and  time  of  day  he  receives  it.  Furthermore,  it  must 
be  received  to  be  executed,  not  to  be  held,  nor  for  any  other  pur- 
pose, and  delivery  with  a  direction  not  to  levy  would  not  create 
any  lien.  While  the  lien  commences  at  the  same  time  as  to 
both  tangible  and  intangible  property,  yet  in  other  respects  the 
rights  of  the  creditor  are  not  the  same  as  to  both  species  of 
property. 

It  will  be  observed  from  the  above  statutes  that  the  fi.  fa. 
is  not  only  a  lien  on  all  the  personal  property  of  the  execution 
debtor  in  being  at  the  time  the  fi.  fa.  goes  into  the  hands  of 
the  officer  to  be  executed,  but  that  the  lien  also  attaches  to  all 
personal  property  which  the  execution  debtor  acquires  during  the 
life  of  that  execution.  As  to  tangible  property,  the  execution 
may  be  levied  on  or  before  the  return  day,  and  hence  the  lien 
attaches  to  the  tangible  property  acquired  on  the  return  day,  as 
well  as  that  acquired  before,  provided  the  fi.  fa.  be  levied  on 
that  day;13  but  as  to  intangible  property,  in  order  that  the  lien 
may  attach,  the  property  must  be  acquired  before  (not  on)  the 
return  day.14 

§  350.    Territorial  extent  of  lien. 

Tangible  Property. — "The  general  rule  as  to  the  territorial  ex- 
tent of  the  lien  of  an  execution  is  that  it  is  coextensive  with  the 
jurisdiction  of  the  officer  to  whom  the  writ  is  delivered,  and  at- 
taches to  all  the  defendant's  goods  and  chattels  within  such  ter- 
ritory, and  as  the  writ  is  in  most  cases  delivered  to  the  sheriff 

12.  Code,  §  3601. 

13.  Code,  §  3587. 

14.  Code,  §  3601. 


§    350  TERRITORIAL    EXTENT    OF    UEN  657 

or  some  other  officer  whose  jurisdiction  has  the  same  limits,  its 
lien  usually  extends  throughout  the  county  in  which  it  is  issued. 
In  some  states,  however,  the  rule  that  the  lien  of  an  execution 
extends  to  the  defendant's  property  throughout  the  state  is  es- 
tablished."15 

\Ye  have  no  case  on  the  subject  in  Virginia,  but  inasmuch  as 
the  lien  on  tangible  property  must  be  perfected,  if  at  all,  by  a 
levy  of  the  fi.  fa.  on  or  before  the  return  day  thereof,  and  as  the 
officer  charged  with  the  collection  has  no  power  to  make  such 
levy  outside  of  his  bailiwick,  it  would  seem  on  principle  that  as 
to  tangible  personal  property,  the  lien  of  a  fi.  fa.  should  be  re- 
stricted to  the  jurisdiction  of  the  officer  charged  with  its  collec- 
tion. There  might  be  a  fi.  fa.  in  the  hands  of  every  sheriff  in 
the  commonwealth,  and  it  would  probably  reach  each  one  at  a 
different  time,  and  the  date  of  the  lien  would  consequently  vary  in 
each  county  according  to  the  time  at  which  the  fi.  fa.  was  received 
by  the  sheriff  of  that  county.  If  issued  in  one  county  and  placed 
in  the  hands  of  the  sheriff  of  that  county,  it  would  be  a  lien  in  that 
county  from  the  time  it  was  received  by  the  sheriff  of  that  county ; 
and  even  if  the  same  fi.  fa.  is  sent  to  a  second  county,  it  would 
seem  that  the  lien,  as  to  property  in  the  second  county,  should  date 
only  from  the  time  that  the  fi.  fa.  was  received  by  the  sheriff  of 
that  county.  In  any  case  the  lien  is  only  an  inchoate,  imperfect 
lien,  and  can  only  be  perfected  by  a  levy  by  an  officer  who  has 
power  to  make  such  a  levy  on  or  before  the  return  day  of  the 
writ. 

Intangible  Property. — As  to  choses  in  action,  the  same  rule 
does  not  apply.  Here  the  lien  is  not  a  levy  lien  at  all,  but  is 
created  by  merely  placing  a  fi.  fa.  in  the  hands  of  an  officer  to 
be  executed,  and  the  common  practice  has  been  to  issue  a  fi.  fa. 
in  the  county  in  which  the  judgment  was  obtained,  and  to  send 
a  summons  to  any  county  in  which  the  garnishee  resides.  It  has 
never  been  thought  necessary  to  send  a  writ  of  fieri  fa-cias  to 
the  county  in  which  the  garnishee  resides.  The  lien  extends 
throughout  the  limits  of  the  state.  The  statute  creating  the  lien 
places  no  limit  upon  its  territorial  extent,  and  there  is  nothing  in- 

15.  11   Am.    &   Eng.    Encl.   Law    (2nd   Ed.)    677. 
—42 


658  EXECUTIONS  §    351 

herent  in  the  nature  of  the  property  upon  which  the  fi.  fa.  is  a 
lien,  or  in  the  methods  of  enforcing  the  fi.  fa.  which  necessitates 
any  such  restriction. 

§  351.    Duration  of  lien. 

Tangible  Property. — As  to  tangible  property,  the  lien  continues 
only  till  the  return  day  of  the  writ,  if  not  levied  on  or  before 
that  day;  but  if  so  levied,  it  continues  thereafter  till  sale,  even 
though  the  defendant  dies  after  levy  but  before  the  sale,  provided 
the  sale  be  not  postponed  so  long  as  to  manifest  an  intention  to 
abandon  the  levy.  If  the  levy  be  abandoned,  the  lien  is  gone,  and 
the  property  becomes  liable  as  before  to  levy  for  any  other  fi. 
/a.10 

Intangible  Property. — As  to  intangible  property,  or  any  prop- 
erty not  capable  of  being  levied  on,  the  lien  continues  during  the 
life  of  the  judgment,  that  is,  for  ten  years  from  the  return  day 
of  the  fi.  fa.  upon  which  there  has  been  no  return,  or  twenty 
years  from  the  return  day  of  any  fi.  fa.  upon  which  there  has 
been  a  return,  and  there  may  be  successive  executions  during 
these  periods  so  as  to  make  the  lien  perpetual.17  Thus  if  a  fi. 
fa.  issued  returnable  to  First  January  Rules,  1901  (say  January 
5,  1901)  and  there  was  a  return  on  it,  the  lien  created  by  the  fi. 
fa.  would  extend  to  January  5,  1921,  and  if  before  that  day  an- 
other fi.  fa.  was  issued,  it  would  extend  the  lien  of  the  first  fi.  fa. 
ten  years  from  the  return  day  of  the  latter  fi.  fa.  if  there  was  no 
return  thereon  or  twenty  years  if  there  was  a  return  and  so  on 
indefinitely.  The  lien,  though  not  enforced  in  the  debtor's  life- 
time, continues  after  his  death.18  The  lien  continues  after 
the  return  day  of  the  execution  and  has  priority  over  a  sub- 
sequent execution  lien  under  the  same  law,  even  though  there 
has  been  a  proceeding  by  a  suggestion  under  the  junior  sooner 
than  under  the  senior  execution.19  The  lien  acquired  on  a 

16.  Rhea  v.  Preston,  75  Va.  757. 

17.  Report  of  Revisers  (1849),  p.  920;  5  Va.  Law  Reg.  673;  Ackiss 
v.  Satchell,  104  Va.  700,  52  S.   E.  378. 

18.  Trevillian   v.   Guerrant,   31    Gratt.   525;    Brown   v.    Campbell,   33 
Gratt.  402. 

19.  Charron  7'.  Boswell,  18  Gratt.  216,  229. 


§    352  RIGHTS   OF   PURCHASER  659 

debtor's  chose  in  action  by  reason  of  the  fi.  fa.  issued  on-  a 
judgment  against  a  defendant  in  his  lifetime  is  lost,  however, 
unless  the  judgment  be  revived  or  some  action  be  instituted 
for  its  enforcement  within  five  years  from  the  qualification 
of  his  personal  representative.20  The  lien  ceases  when  the 
right  to  enforce  the  judgment  ceases,  or  is  suspended  by  a  forth- 
coming bond  being  given  and  forfeited,  by  supersedeas,  or  by 
other  legal  process.21  Any  return  which  shows  that  the  fi.  fa.  has 
not  been  satisfied  is  sufficient  to  thus  extend  the  life  of  the  lien. 
Indeed,  if  the  judgment  was  confessed  under  an  agreement  that 
no  fi.  fa.  should  be  issued,  and  afterwards,  contrary  to  the  agree- 
ment, a  fi.  fa.  was  issued,  it  would  create  a  lien  and  extend  the 
life  of  the  judgment  as  against  third  persons.  The  agreement  is 
personal  to  the  parties  to  the  agreement,  and  can  only  be  en- 
forced by  them.  Third  persons  cannot  take  advantage  of  it,  nor 
can  the  execution  be  attacked  except  by  a  direct  proceeding  for 
that  purpose.22 

§  352.    Rights  of  purchaser. 

Tangible  Property. — If  the  property  is  capable  of  being  levied 
on,  the  lien  of  the  fi.  fa.  is  superior  to  the  rights  of  purchasers 
with  or  without  notice  of  the  fi.  fa.,  provided  a  levy  is  actually 
made  on  or  before  the  return  day  of  the  writ.  If  the  levy  is  not 
so  made,  the  lien  is  gone,  and  the  purchaser  gets  good  title.23 
The  lien,  however,  is  not  created  by  the  levy,  but  by  placing  the 
writ  in  the  hands  of  the  officer  to  be  executed.  Its  duration  as  to 
tangible  property  is  simply  extended  by  the  levy.  We  sometimes 
speak  of  it  as  a  levy  lien,  but  this  is  misleading.  The  fi.  fa.  is 
a  lien  by  virtue  of  the  terms  of  the  statute,  and  this  lien  lasts 
in  any  event  till  the  return  day  of  the  writ  be  passed,  but  may 
be  extended  by  a  levy  on  or  before  the  return  day. 

Intangible  Property. — If  the  property  is  not  capable  of  being 
levied  on,  the  lien  of  the  creditor  gives  way  to  an  assignee  for 

20.  Code,  §  3577;  Spencer  v.   Flanary,   104  Va.  395,  51  S.   E.  849. 

21.  Code,  §  3602. 

22.  Baer  v.  Ingram,  99  Va.  200,  37  S.  E.  905.     See  also,  Lowenbach 
r.  Kelly,  111  Va.  439,  69  S.   E.  352. 

23.  Evans  r.  Greenhow,  15  Gratt.  153,  161. 


660  EXECUTIONS  §  352 

value  without  notice,  and  the  latter  has  priority  over  the  execu- 
tion creditor.  A  deed  of  trust  on  choses  in  action  is  an  assign- 
ment, and  an  antecedent  debt  is  a  valuable  consideration  within 
the  meaning  of  this  statute,  and  although  the  beneficiary  in  the 
deed  may  not  know  of  its  existence  when  made,  yet  he  may 
accept  when  it  comes  to  his  knowledge,  and  this  acceptance  will 
relate  back  to  the  delivery  of  the  deed.24  If  an  assignee  for 
value  of  a  chose  in  action  has  no  notice  of  the  existence  of  a 
fi.  fa.  against  his  assignor,  nor  of  any  fraudulent  intent  on  the 
part  of  his  assignor,  it  is  immaterial  that  the  assignor  was  in- 
solvent and  intended  to  commit  a  fraud  in  making  the  assign- 
ment.25 Whether  or  not  an  antecedent  debt  is  a  valuable  con- 
sideration is  the  subject  of  much  conflict  of  opinion  outside  of 
Virginia.26  A  debtor  of  the  execution  debtor  cannot  make  a 
valid  payment  to  his  creditor  if  he  knows  of  the  existence  of  the 
execution,  but  he  is  protected  if  he  has  no  notice.27 

Here  again  it  must  be  observed  that  the  lien  is  created  by  plac- 
ing the  fi.  fa.  in  the  hands  of  the  officer  to  be  executed,  and  not 
by  the  notice.  The  lack  of  notice  to  the  assignee  or  to  the  debtor 
of  the  execution  debtor  will  avoid  the  lien,  but  the  notice  does 
not  create  it.  Hence,  if  a  liability  to  the  execution  debtor  arises 
after  a  person  has  been  summoned  as  garnishee,  or  has  notice 
of  the  fi.  fa.,  and  before  the  return  day  of  the  writ  (although  no 
liability  existed  at  the  time  the  notice  of  the  fi.  fa.  was  acquired) 
the  lien  of  the  fi-  fa.  attaches  to  it,  and  neither  the  assignee  of 
the  debt  having  such  notice  nor  the  garnishee  making  payment 
to  his  creditor  is  protected.  A  summons  in  garnishment  does  not 
create  a  lien,  but  is  only  a  means  of  enforcing  the  lien  already 
existing  by  reason  of  the  fi.  fa-28  No  particular  form  of  notice 
is  required,  nor  need  it  be  in  writing. 

24.  Evans,  Trustee,  v.   Greenhow,   15   Gratt.   153;   Rhea  v.   Preston, 
75  Va.  757. 

25.  Shields  v.  Mahoney,  94  Va.  487,  27  S.  E.  23. 

26.  23  Am.  &  Eng.  Encl.  Law   (2nd  Ed.)   490;  1  Devlin  on  Deeds, 
§  276  et  seq.,  §  291  et  seq.;  Parmalee  v.  Simpson,  5  Wall.  81. 

27.  Code,  §  3601;  Park  v.  McCalley,  67  W.  Va.  104,  67  S.  E.  174. 

28.  Park  v.  McCalley,  67  W.  Va.  104,  67  S.  E.  174. 


§    353  MODE  OF  ENFORCING  THE  LIEN  661 

§  353.    Mode  of  enforcing  the  lien. 

Tangible  Property. — The  officer  advertises  tangible  property 
in  the  manner  prescribed  by  law,  sells  the  same  for  cash,  and  pays 
the  execution  creditor  the  amount  of  his  execution,  principal,  in- 
terest and  costs.  If  there  should  turn  out  to  be  any  surplus,  he 
is  required  to  pay  this  to  the  execution  debtor.  The  officer  has 
no  right  to  make  an  excessive  levy,  nor  to  sell  more  property 
than  is  necessary  to  satisfy  the  execution,  but  of  course  this 
cannot  always  be  calculated  with  exactness.  If  the  excess 
amounts  to  any  considerable  sum,  the  officer  would  be  liable  to  the 
execution  debtor  for  making  an  excessive  sale,  but  if  the  officer 
pays  such  excess  to  the  debtor  who  accepts  it  without  protest, 
this  is  a  ratification  of  the  officer's  act  in  making  the  excessive 
sale  and  a  waiver  of  the  right  of  action  against  him.29 

Intangible  Property. — The  clerk  of  the  court  from  whose  of- 
fice the  execution  issues  is  requested  (verbally  or  in  writing,  but 
usually  by  a  memorandum  on  the  memorandum  book) 
to  issue  a  summons  in  garnishment  against  the  party 
indebted  to  the  defendant  in  the  execution.  The  clerk  isr 
sues  the  garnishment  as  of  course,  directing  the  officer  to  sum- 
mon the  party  owing  the  money  to  some  day  of  the  existing  or 
next  term  of  the  court  to  answer  whether  or  not  he  is  indebted 
to  the  defendant  in  the  execution.  A  summons  in  garnishment 
may  be  returnable  more  than  ninety  days  after  its  date.30  If 
such  person,  after  being  served  with  the  summons  twenty  days, 
fails  to  appear,  or  if  it  be  suggested  that  he  has  not  fully  dis- 
closed his  liability,  the  court  may  either  compel  him  to  appear, 
or  hear  proof  of  any  debt  owing  by  him,  and  make  such  orders 
in  relation  thereto  as  if  what  is  so  proved  had  appeared  on  his 
examination.31  If  a  controversy  arises  as  to  the  amount  due  by 
the  garnishee,  the  court  without  formal  pleading  may  inquire 
into  the  matter,  or,  if  either  party  demand  it,  summon  a  jury  to 
ascertain  the  amount  due.32  If  the  garnishee  appears  in  answer 
to  the  summons,  he  is  examined  on  oath,  and  if  it  appear  on  such 

29.  Manchester  Loan  Co.  v.   Porter,  106  Va.  528,  56  S.  E.  337. 

30.  Code,  §  3609. 

31.  Code,  §§  3611,  2977. 

32.  Code,  §  2978. 


662  EXECUTIONS  §  353 

examination  that  there  is  a  liability  on  him  on  account  of  his 
indebtedness  to  the  execution  debtor,  the  court  may  order  him 
to  pay  the  same  to  any  officer  whom  it  may  designate,33  or  more 
generally  give  a  judgment  directly  against  him  for  the  amount 
he  admits  to  be  due  in  favor  of  the  execution  creditor.  If  the 
property  is  tangible,  there  is  no  occasion  for  a  summons  in 
garnishment,  and  the  sheriff  may  levy  on  it  where  found,  no  mat- 
ter in  whose  possession  it  may  be,  and  if  a  controversy  arises  as 
to  its  liability  .for  the  execution,  this  controversy  may  be  settled 
either  by  interpleader  proceedings,  or  by  proceedings  on  an  in- 
demnifying bond,  as  hereinbefore  set  forth.  Tangible  property 
which  the  execution  debtor  has  fraudulently  conveyed  to  another 
cannot  be  garnished.  The  garnishment  statute  does  not  contemplate 
or  operate  upon  an  estate  in  the  possession  of  the  garnishee  to 
'  which  he  has  title.  Section  3604  of  the  Code  furnishes  an  effi- 
cient remedy  by  action  at  law  or  suit  in  equity  for  reaching  such 
property,  or  the  execution  creditor  may  ignore  the  fraudulent 
transfer  and  levy  on  the  property  as  that  of  the  execution  debtor, 
and,  upon  proper  proceedings  had,  have  it  sold,  or  the  title 
thereto  tried.34 

If  the  garnishee's  answer  admits  a  liability,  but  the  amount 
is  not  sufficient  to  pay  the  entire  execution  and  cost,  the  cost  of 
the  garnishment  will  be  first  paid  and  the  net  balance  applied 
to  the  payment  of  the  execution,  usually  paying  the  cost  first. 
If  the  garnishee  fail  to  appear,  or,  having  appeared,  fail  to  dis- 
close any  indebtedness,  the  plaintiff  may,  if  he  can,  show  an  in- 
debtedness on  the  part  of  the  garnishee  by  any  other  competent 
evidence.  He  is  not  concluded  by  the  statements  of  the  gar- 
nishee as  to  the  amount  of  his  indebtedness.35  A  copy  of  the 
summons  in  garnishment  is  required  to  be  served  on  the  execu- 
tion debtor  as  well  as  on  the  garnishee,  and  such  debtor  .may 
make  defence.  If  the  debtor  be  a  non-resident  there  must  be  an 
order  of  publication  against  him,  except  upon  executions  issued 
by  a  justice.36  If  the  garnishee  admits  liability,  but  the  debt  is 

33.  Code,  §  3610. 

34.  Freitas  V.  Griffith,  112  Va.  343,  71  S.  E.  531. 

35.  Code,  §  2977. 

36.  Code,  §  3609. 


§    353  MODE  OF  ENFORCING  THE  TITLE  663 

not  due,  the  proceeding  must  be  continued  until  the  debt  be- 
comes due,  unless  the  garnishee  will  consent  to  a  present  judg- 
ment against  him,  with  a  suspension  of  execution  until  the  debt 
becomes  due.  This  is  sometimes  done,  and  it  is  very  desirable 
for  the  creditor  to  get  this  if  he  can,  as  it  cuts  off  all  possibility 
of  thereafter  assigning  the  debt  by  the  defendant  in  the  original 
execution.  If  the  evidence  of  the  garnishee's  debt  is  negotiable 
paper  it  should  be  produced  for  surrender  to  him,  or  other  proper 
steps  be  taken  for  his  protection. 

While  a  fi.  fa.  is  a  lien  on  a  legacy,  or  distributive  share  of  an 
estate,  the  process  of  garnishment  at  law  will  not  lie  against  exec- 
utors and  administrators  to  recover  such  legacy  or  distributive 
share,  but  other  remedies  must  be  resorted  to.37  Where  a  cor- 
poration is  summoned  as  garnishee,  the  usual  practice  is  to  desig- 
nate some  officer  of  the  corporation  who  has  knowledge  of  the 
facts  upon  whom  the  garnishment  is  to  be  served,  as  the  corpora- 
tion, as  such,  can  only  answer  under  its  corporate  seal.38 

As  to  property  acquired  after  the-officer  receives  the  writ,  and 
before  the  return  day,  the  lien  attaches  to  both  species  of  prop- 
erty, but  as  to  property  of  either  kind  acquired  after  the  return 
day,  the  lien  does  not  attach.  The  lien  attaches,  however,  to 
tangible  personal  property  acquired  on  the  return  day,  provided 
it  is  levied  on  that  day.  As  the  lien  is  fixed  by  the  fi.  fa.  and  not 
by  the  garnishment,  the  garnishee  is  required  to  answer  whether 
or  not  he  was  indebted  not  only  at  the  time  of  the  service,  but 
thereafter  during  the  life  of  the  fi.  fa.39 

Situs  of  a  Debt  for  Purpose  of  Garnishment. — What  is  the 
situs  of  a  debt  for  the  purpose  of  garnishment  or  attachment  is  a 
subject  of  much  conflict  of  authority.  While  the  situs  of  a  debt 
for  the  purpose  of  taxation,  distribution,  and  the  like,  is  the  res- 
idence of  the  owner,  or  creditor  (and  a  few  courts  give  the  same 
situs  for  the  purpose  of  garnishment),  it  is  generally  held  that 
the  residence  of  the  debtor,  rather  than  that  of  the  creditor,  is 
the  situs  of  the  debt  for  the  purpose  of  garnishment  and  attach- 

37.  Bickle  v.  Crisman,  76  Va.     678,  692;  Swann  v.  Summers,  19  W. 
Va.  125. 

38.  B.  &  O.  R.  Co.  v.  Gallahue,  12  Gratt.  655. 

39.  Park  v.  McCauley,  67  W.  Va.  104,  67  S.  E.  174. 


664  EXECUTIONS  §  354 

ment.  "The  rule  announced  in  a  number  of  late  and  well-con- 
sidered cases,  and  which  seems  to  be  the  doctrine  which  will  best 
protect  the  interests  of  commerce,  is  that  a  debtor  may  be  charged 
as  garnishee  of  his  creditor,  without  regard  to  the  illusive  the- 
ories as  to  the  situs  of  a  debt,  in  any  jurisdiction  in  which  an  ac- 
tion could  have  been  brought  by  such  creditor  against  the  debtor 
for  the  recovery  of  the  debt."40 

The  legislature  of  Virginia  has  practically  determined  that  the 
situs  of  a  debt,  both  for  purposes  of  attachment  and  garnishment, 
is  the  residence  of  the  debtor;41  and  this,  on  principle,  seems  to 
be  the  correct  rule.42  The  legislature  of  Virginia,  however,  has 
imposed  very  severe  penalties  on  any  person  who  shall  directly 
or  indirectly  send  a  claim  out  of  the  State  for  the  purpose  of  at- 
tachment or  garnishment  in  another  state  of  the  wages  of  a  la- 
boring man  and  householder,  with  intent  to  deprive  him  of  the 
exemption  of  fifty  dollars  a  month  given  to  him  by  §  3652  of  the 
Code.4a 

The  conflict  of  decisions  on  the  subject  of  the  situs  of  debts 
for  the  purpose  of  garnishment  or  attachment  has  worked  great 
hardship  and  injustice  to  garnishees,44  but  it  has  been  held  in 
Virginia  that  a  garnishee,  who,  without  fault  or  negligence  on 
his  part,  has  been  compelled  by  a  court  of  competent  jurisdiction, 
to  pay  the  debt  to  his  debtor,  cannot  be  compelled  to  pay  the  same 
indebtedness,  or  any  part  thereof,  to  the  person  suing  out  the 
garnishment.45 

§  354.    Property  undisclosed. 

There  may  be  property  of  either  kind  (capable  of  being  levied 
on,  or  not  capable  of  being  levied  on)  upon  which  the  ft.  fa.  is  a 
lien,  or  even  upon  which  it  is  not  a  lien,  and  of  which  the  creditor 

40.  14  Am.   &   Eng.   Encl.   Law   (2nd   Ed.)   805. 

41.  Code,   §  2959,   Cl.   1;   §  3609. 

42.  4  Va.  Law  Reg.  471-472. 

43.  Code,  §  3652a. 

44.  See    discussion,    1    Va.    Law    Reg.    241;    14    Am.    &    Eng.    End. 
Law,    805. 

45.  Va.    F.    &   M.   Ins.   Co.  v.   New  York,   etc.,   Co.,  95   Va.   515,  28 
S.   E.  888. 


§    354  PROPERTY  UNDISCLOSED  665 

does  not  know,  and  yet  which  may  be  made  available  for  the  pay- 
ment of  the  debt  due  the  creditor.  If  the  debtor  owns  property 
outside  of  the  state,  real  or  personal,  the  process  of  the  state 
cannot  run  into  another  state  and  there  reach  the  property,  but 
the  courts  of  this  state,  having  jurisdiction  of  his  person,  may  by 
process  of  contempt  compel  him  to  surrender  the  property  for 
the  payment  of  his  execution  creditors.  This  is  accomplished  by 
interrogatories.  Upon  application  of  the  execution  creditor,  the 
judge  of  the  court  from  which  the  execution  issued,  in  term  time 
or  vacation,  may  issue  a  summons  requiring  the  execution  debtor 
to  appear  before  a  commissioner  of  any  circuit  or  corporation 
court  at  a  time  and  place  to  be  designated  in  the  summons,  to 
answer  such  interrogatories  as  shall  be  propounded  to  him  by 
counsel  for  the  execution  creditor,  or  by  the  commissioner,  ex- 
cept that  the  summons  shall  not  be  served  out  of  the  county  or 
corporation  in  which  such  commissioner  resides.  The  execution 
debtor  must  appear  and  answer  under  oath.  If  he  fails  to  appear 
and  answer,  or  answers  evasively,  provision  is  made  for  compell- 
ing a  proper  answer  by  the  section  of  the  Code  quoted.46 

46.  Section  3603  of  the  Code  is  as  follows:  "To  ascertain  the 
estate  on  which  a  writ  of  fieri  facias  is  a  lien  and  to  ascertain  any 
real  estate  in  or  out  of  this  state  to  which  a  debtor  named  in  such 
fieri  facias  is  entitled  upon  the  application  of  the  execution  creditor 
the  judge  of  any  court  of  record  from  which  the  fieri  facias  issued 
»may,  either  in  term  or  vacation,  issue  a  summons  requiring  the  exe- 
cution debtor  or  any  officer  of  a  corporation  debtor  having  any  offi- 
cer in  this  state  or  any  debtor  or  bailee  of  his  or  its,  requiring  him 
or  them  to  appear  before  one  of  the  commissioners  of  any  circuit 
or  corporation  court  at  a  time  or  place  to  be  designated  in  the  said 
summons  to  answer  such  interrogatories  as  shall  be  propounded 
to  him  or  them  by  the  counsel  of  the  execution  creditor  or  the  com- 
missioner,- except  that  such  summons  shall  not  be  served  out  of 
the  county  or  corporation  in  which  such  commissioner  resides.  The 
debtor  served  with  such  summons  shall  appear  at  the  time  and  place 
mentioned  and  make  answers  under  oath  to  such  interrogatories. 
If  he  fail  to  appear  and  answer  or  make  any  answers  which  are 
deemed  by  the  commissioner  to  be  evasive,  the  commissioner  may 
by  rule  returnable  to  a  future  day  or  forthwith  require  the  said 
debtor  or  his  debtor  or  bailee  to  show  cause  why  an  attachment 
may  not  be  issued  against  him  or  them  to  compel  him  or  them  to 
answer  the  interrogatories  aforesaid  or  any  others  which  he  may  deem 


666  EXECUTIONS  §  354 

If  he  discloses  any  real  estate  outside  the  state,  he  is  required  to 
convey  it  to  the  officer  to  whom  the  fi.  fa.  was  delivered, 
and  money,  bank  notes,  etc.,  or  other  personal  estate  he  is  re- 
quired to  deliver  to  the  officer.  If  he  fails  to  make  such  con- 
veyance and  delivery,  the  same  may  be  compelled  by  taking  him 
into  custody  until  the  conveyance  is  made,  and  when  it  is  made, 

pertinent.  But  the  commissioner  shall  enter  in  his  proceedings  and 
report  to  the  court  mentioned  in  section  three  thousand  six  hundred 
and  five  any  and  all  the  objections  taken  by  such  debtor  against 
answering  such  interrogatories  or  any  or  either  of  them,  and  if  the 
court  afterwards  sustain  any  one  or  more  of  said  objections  the 
answers  given  to  such  interrogatories  as  to  which  objections  are 
sustained  shall  be  held  for  naught  in  that  or  any  other  cause." 

The  following  forms  are  taken  from  Mr.  Pollard's  Notes  to  the 
above  section  of  the  Code: 

"Virginia:     In  the   Court  of  the   

,  Plaintiff, 

v. 
•••••,    Defendant. 

It  appearing  to  the  court  that  the  plaintiff  did  on  the    day 

of  ,  19..,  obtain  judgment  in  this  court  against  the  defend- 
ant for  the  sum  of  ,  with  interest  thereon  from  the  

day  of ,  19..,  and  costs  amounting  to    , 

And    it   further   appearing    that    an    execution   upon    said   judgment 

issued   on   the    day   of    ,   19..,   returnable   to 

rules,  19. . .,  came  to  the  hands  of  the  sheriff  of   on  the 

day  of    ,   19...,  and  there  remains  unsatisfied./ 

Therefore,  on  application  of  the  plaintiff,  it  is  ordered  that  the 
said  defendant  personally  appear  before  ,  one  of  the  com- 
missioners in  chancery  of  the  court  of  the  ,  at 

his  office  situated   ,  on  the    day  of   ,  19..., 

at  ....  o'clock  . . .  M.,  then  and  there  to  answer  such  interrogato- 
ries as  may  be  propounded  to  him  by  counsel  for  the  plaintiff  or 
by  said  commissioner,  as  prescribed  in  section  3603  of  the  Code  of 
Virginia  and  acts  amendatory  thereof;  and 

It  is  ordered  that  a  copy  hereof  be  forthwith  served  on  the   said 

defendant,  by  the -sheriff  of    ,  who   shall  make 

his  return  as  to  such   service  to  said  commissioner. 

A  copy — Teste.  ,  Clerk." 

Under  this  section  it  would  seem  that  a  simple  summons  issued 
by  the  judge  is  all  that  is  necessary,  but  the  better  practice  is  to 


§    354  PROPERTY  UNDISCLOSED  667 

provision  is  made  for  his  discharge.47  The  officer  is  to  sell  the 
land  as  he  would  horses,  mules  or  work  oxen.  The  personal 
property  he  deals  with  as  if  levied  under  a  fi.  fa.,  i.  e.,  advertises 

issue  an  order  as  above  indicated,  thus  preserving  a  full  record  of 
all  the  proceedings  in  the  suit. 

If   a    simple    summons   be   preferred,    the    following   form   may    be 
used: 

Form   of   Summons. 

The   Commonwealth  of  Virginia,  to  the  Sheriff  of  the  County  of 


Greeting: 

We  command  you  that  you  summon  to  appear  before 

,  a  commissioner  in  chancery  of  the  court  of 

,  at  his  office  in  on  the  day 

of  ,  19...,  at  ....  o'clock  ...  M.,  then  and  there  to  answer 

such  interrogatories  as  may  be  legally  propounded  to  ,  in 

order  to  ascertain  the  estate  of  the  said  upon  which  the 

•execution  in  favor  of  against  the  said  is  a  lien, 

or  any  real  estate  in  or  out  of  this  state  to  which  the  said  

is  entitled;  which  execution  was  issued  on  the day  of 

19...,  by  the  clerk  of  the  circuit  court  of  said  county,  upon  a  judg- 
ment obtained  in  the  court  by  said  against  the 

said  for  dollars  and  with  legal  interest 

thereon  from  the  day  of  ,  19...,  till  paid,  and  $ 

costs,  and  made  returnable  to  the rules,  19. . .,  and  came  into 

the  hands  of  on  the  day  of  ,  19...,  at 

.  . .  o'clock  . . .  M. 

Given  under  my  hand  this   day  of   ,  19... 


Judge    of    

47.  Section  3604  of  the  Code  is  as  follows:  "Any  real  estate  out 
)f  this  state  to  which  it  may  appear  by  such  answers  that  the  debtor 
is  entitled  shall  be  forthwith  conveyed  by  him  to  the  officer  to  whom 
was  delivered  such  fieri  facias,  and  any  money,  bank  notes,  securi- 
ties, evidences  of  debt,  or  other  personal  estate  which  it  may  ap- 
)ear  by  such  answers  are  in  possession  of  or  under  the  control  of 
the  debtor  or  his  debtor  or  bailee  shall  be  delivered  by  him  or  them  as 
far  as  practicable  to  the  said  officer  or  to  such  other  and  in  such  manner 
is  may  be  ordered  by  the  said  commissioner  or  the  said  court  or 
the  judge  thereof  where  it  is  in  court  or  before  such  judge;  unless 
such  conveyance  and  delivery  be  made  a  writ  shall  be  issued  by  the 
:ourt's  order,  or,  if  the  answers  be  not  in  court,  by  the  commissioner 


668  EXECUTIONS  §  355 

and  sells  the  goods  and  chattels,  and  as  to  choses  in  action,  he  may 
receive  payment  for  sixty  days  after  delivery  to  him,  and  after- 
wards return  those  uncollected  to  the  clerk's  office  of  the  court 
from  which  the  execution  issued.48  The  creditor  can  then  pro- 
ceed against  residents  of  the  state  by  garnishment.  The  statute 
is  silent  as  to  the  mode  of  procedure  against  non-residents  who 
are  liable  in  choses  in  action,  but  it  is  probable  that  the  court 
from  whose  clerk's  office  the  execution  issued  may  designate 
some  person  to  proceed  on  them  in  the  foreign  jurisdiction,  or 
else  direct  a  sale  thereof.  If  an  execution  debtor,  after  being 
served  with  a  summons  issued  by  a  commissioner,  fails  within 
the  time  prescribed  therein,  to  file  answers  upon  oath  to  said  in- 
terrogatories, or  files  answers  deemed  by  the  commissioner  to 
be  evasive,  on  affidavit  by  the  creditor  that  the  execution  debtor 
is  about  to  quit  the  state,  the  commissioner  may  issue  a  writ  di- 
recting the  sheriff  to  apprehend  the  debtor  and  keep  him  safely 
until  he  answers  the  interrogatories,49  but  this  remedy  is  not  only 
slow,  but  of  little  practical  value,50  and  resort  is  generally  had 
to  the  more  speedy  and  effective  remedy  of  holding  the  defendant 
to  bail  discussed  in  the  next  section. 

§  355.    Non-resident  debtor. 

If  the  debtor  be  a  non-resident  of  the  state  and  there  is  a  per- 
sonal judgment  against  him,  and  he  has  personal  property  in  the 
state,  it  may  be  levied  on  as  though  he  were  a  resident.  If  he 
himself  be  found  within  the  state,  the  creditor,  if  he  has  a  judg- 

directed  to  the  sheriff  of  any  county  or  the  sergeant  of  any  corpo- 
ration requiring  such  sheriff  or  sergeant  to  take  the  debtor  and  keep 
him  safely  until  he  shall  make  such  conveyance  and  delivery,  upon 
doing  which  he  shall  be  discharged  by  the  court  under  whose  order 
the  writ  issued,  or  if  the  answers  were  not  in  the  court  by  the  court 
by  which  the-  commissioner  was  appointed,  or  in  either  case  if  the 
court  be  not  sitting  by  the  commissioner.  He  may  also  be  dis- 
charged by  the  said  court  or  the  judge  thereof  in  vacation  in  any 
case  if  the  court  or  judge  shall  be  of  opinion  that  he  was  improperly 
committed  or  is  improperly  or  unlawfully  detained  in  custody." 

48.  Code,  §§  3603,  3608. 

49.  Code,   §   3606. 

50.  6  Va.  L.  Reg.  804. 


§    356  MOTION   TO   QUASH  669 

ment,  may  sue  on  the  judgment,  and  if  no  judgment,  may  sue  on 
the  original  cause  of  action,  and  hold  the  defendant  to  bail,  if 
he  is  about  to  quit  the  state.  The  creditor  need  have  no  other 
ground  for  this  procedure  than  the  fact  that  his  debtor  is  "about 
to  quit  the  state."  This  is  a  personal  attachment  against  the 
debtor,  the  proceedings  on  which  will  be  explained  in  connection 
with  attachments,  to  which  the  subject  more  properly  belongs. 
It  is  sufficient  here  to  say  that  a  capias  issues  for  the  arrest 
of  the  defendant,  and  he  is  actually  incarcerated  unless  he  gives 
bond,  with  good  security,  in  such  penalty  as  the  court,  judge  or 
justice  may  think  fit,  with  condition  that  if  judgment  be  rendered 
in  the  action  and  within  four  months  thereafter  execution  be 
issued  and  interrogatories  be  filed  before  a  commissioner  of 
the  court  wherein  such  judgment  is,  he  will,  at  the  time  the  com- 
missioner issues  the  summons,  be  in  the  county  or  corporation  in 
which  the  commissioner  resides,  and  will  within  the  time  pre- 
scribed by  the  summons  file  proper  answers  on  oath  to  such 
interrogatories  and  make  such  conveyance  and  delivery  as  is  re- 
quired by  Ch.  176  of  the  Code,  or  in  default  thereof,  will  perform 
and  satisfy  the  judgment  of  the  court.51  This  is  a  drastic  meas- 
ure against  non-resident  debtors,  but  a  very  effectual  one.  If 
a  creditor  has  no  judgment,  but  a  non-resident  debtor  has  ef- 
fects within  the  state,  they  may  be  subjected  to  attachment,  the 
mode  of  procedure  upon  which  will  be  treated  later. 

If  the  record  shows  that  any  person  other  than  the  plaintiff 
in  a  judgment  is  the  beneficial  owner  thereof,  in  whole  or  in 
part,  the  clerk  is  required  to  endorse  on  the  execution  the  extent 
of  the  interest.52 

§  356.    Motion  to  quash. 

A  motion  to  quash  is  the  proper  method  of  determining  the 
regularity  and  validity  of  a  writ  of  fi.  fa.  "The  motion  to  quash 
may,  after  reasonable  notice  to  the  adverse  party,  be  heard  and 
decided  by  the  justice  who  issued  the  execution,  or  the  circuit 
court  of  the  county  or  the  corporation  court  of  the  corporation 

51.  Code,  §  2992. 

52.  Code,  §  3583. 


670  EXECUTIONS  §  356 

in  which  such  justice  resides,  and  in  other  cases  by  the  court 
whose  clerk  issued  the  execution,  or  if  it  was  from  a  circuit  or 
corporation  court,  by  the  judge  thereof  in  vacation;  and  such 
court  or  judge,  on  the  application  of  the  plaintiff  in  the  motion, 
may  make  an  order  staying  the  proceedings  on  the  execution  un- 
til the  motion  be  heard  and  determined,  the  order  not  to  be  ef- 
fectual until  bond  be  given  in  such  penalty  and  with  such  condi- 
tion, and  either  with  or  without  surety,  as  the  court  or  judge 
may  prescribe.  The  clerk  from  whose  office  the  execution  is- 
sued, or  the  justice  rendering  the  judgment,  as  the  case  may  be, 
shall  take  the  bond  and  make  as  many  copies  of  the  order  as  may 
be  necessary  and  endorse  thereon  that  the  bond  required  has 
been  given;  and  a  copy  shall  be  served  on  the  plaintiff  in  the 
execution  and  on  the  officer  in  whose  hands  the  execution  is."53 
As  a  motion  to  quash  does  not  per  se  operate  to  suspend  the  en- 
forcement of  the  fi.  fa.  while  the  motion  is  pending,  it  was 
formerly  necessary  to  resort  to  equity  for  an  injunction,  but  the 
statute  now  provides  that  the  court  or  judge,  on  application  of 
the  plaintiff  in  the  motion,  may  make  an  order  staying  the  pro- 
ceedings on  the  execution  until  the  motion  is  heard  and  deter- 
mined. The  order,  however,  is  not  to  be  effectual  until  bond  is 
given,  as  above  stated.  If  the  fi.  fa.  does  not  follow  the  judg- 
ment, or  is  issued  contrary  to  the  agreement  of  the  parties,  or  is 
subject  to  credits  not  endorsed,  or  has  been  negligently  or  fraud- 
ulently issued,  a  motion  to  quash  it  is  the  proper  remedy,  and  this 
is  a  direct  proceeding  to  attack  the  fi.  /a.54  If  a  former  fi.  fa. 
has  been  satisfied,  or  levied  on  sufficient  property  to  satisfy  it, 
which  has  been  lost  to  the  execution  debtor  by  the  negligence  of 
the  officer,  a  motion  to  quash  the  second  fi.  fa.  is  the  proper  rem- 
edy.55 If  the  motion  to  quash  is  based  on  the  ground  that  a  for- 
mer fi.  fa.  (which  was  not  returned)  was  levied  and  satisfied, 
the  fact  of  the  levy  of  the  former  fi.  fa.  may  be  shown  by  parol.56 

53.  Code,  §  3599. 

54.  Enders   v.    Burch,    15    Gratt.    64,    72;    Snavely   v.    Harkrader,    30 
Gratt.  487;  Baer  v.  Ingram,  99  Va.  200,  37  S.   E.  905;   Lowenback  v. 
Kelley,  111  Va.  439,  69  S.  E:  352;  Taney  v.  Woodmansee,  23  W.  Va 
709;  Howell  v.  Thomason,  34  W.  Va.  794,  12  S.  E.  1088. 

55.  Sutton  v.  Marye,  81  Va.  329;  Walker  v.  Com.,  18  Gratt.   13. 

56.  Cockerell  v.  Nichols,  8  W.  Va.  159. 


§    357  VENDITIONI  EXPONAS  671 

There  is  no  time  within  which  a  motion  to  quash  must  be  made,57 
and  it  may  be  made  by  the  plaintiff  or  defendant,58  and  as  well 
after  the  return  day  as  before,  and  whether  it  is  alive  or  not;59 
but  where  the  fi.  fa.  issued  in  contravention  of  the  agreement  of 
the  parties  has  been  returned,  and  a  second  fi.  fa.  issued,  the 
quashing  of  the  second  fi.  fa.  does  not  destroy  the  effect  of  the 
first  fi.  fa.,  and  the  lien  created  thereby  continues  in  effect.  The 
effect  of  the  first  fi.  fa.  can  only  be  destroyed  by  a  direct  proceed- 
ing for  that  purpose,  such  as  a  motion  to  quash  that  fi.  fa.,  and 
this  can  only  be  prosecuted  by  a  party  thereto  or  his  personal 
representative.  The  agreement  not  to  issue  the  fi.  fa.  is  personal 
to  the  parties  thereto,  and  cannot  be  taken  advantage  of  by  third 
persons.60  On  a  motion  to  quash,  the  officer  may  be  allowed  to 
amend  his  return  under  the  conditions  hereinbefore  set  forth.61 
If  judgment  and  fi.  fa.  be  recovered  against  two  persons  as 
partners,  although  the  process  was  served  on  only  one  of  them, 
a  motion  to  quash  does  not  lie  at  the  instance  of  the  defendant 
who  was  served  with  process.62 

If,  for  any  reason,  the  judgment  on  which  a  fi.  fa.  issues  is 
vacated  or  annulled,  this  ipso  facto  vacates  any  fi.  fa.  issued 
thereon  without  any  order  quashing  the  fi.  /fl.63 

§  357.    Venditioni  exponas. 

A  writ  of  venditioni  exponas  is  a  writ  directed  to  the  sheriff 
or  other  officer  commanding  him  to  expose  to  sale  property  which 
has  been  previously  levied  on.  If  a  fi.  fa.  has  been  returned, 
showing  a  levy  on  personal  property,  but  no  sale  for  want  of 
bidders,  or  because  the  sheriff  did  not  have  time  to  advertise 
and  sell  after  levy  and  before  the  return  day,  or  if  the  officer 
dies  after  levy  but  before  sale,  leaving  no  deputy  authorized  to 

57.  Lowenback  v.  Kelley,  111  Va.  439,  69  S.  E.  352. 

58.  Rinehard  v.  Baker,  13  W.  Va.  805. 

59.  Slingluff  v.  Collins,   109  Va.   717,  64   S.    E.   1055;   Lowenback  v. 
Kelley,   111  Va.  439,   69   S.   E.  352. 

60.  Baer  v.  Ingram,  99  Va.  200,  37  S.  E.  905. 

61.  Walker  v.  Com.,  18  Gratt.  13;  Slingluff  r.  Collins,  supra. 

62.  Lee  v.  Hassett,  41  W.  Va.  368,  23  S.  E.  559. 

63.  Ballard  v.  Whitlock,  18  Gratt.  235. 


672  EXECUTIONS  §  357 

make  the  sale,  in  all  these  cases  the  proper  writ  is  a  writ  of 
venditioni  exponas.6*  The  sheriff  may  postpone  a  sale  if  he 
is  not  offered  a  reasonably  fair  price  for  the  property,  and  where 
the  writ  of  venditioni  exponas  is  issued  because  of  the  want  of 
bidders  it  must  direct  the  officer  to  make  the  sale  peremptorily. 
In  Virginia  it  is  provided  by  statute  that  a  deputy  of  a  sheriff 
or  sergeant  in  office  at  the  time  of  his  death  shall,  notwithstand- 
ing the  death  of  his  principal,  unless  removed,  continue  in  office 
until  the  qualification  of  a  new  sheriff  or  sergeant,,  and  execute 
the  same  in  the  name  of  the  deceased  and  in  like  manner  as  if 
the  sheriff  or  sergeant  had  continued  alive  until  such  qualifica- 
tion.65 If,  however,  the  officer  die  leaving  no  deputy,  then,  upon 
a  suggestion  of  that  fact,  a  writ  of  venditioni  exponas  may  be  di- 
rected to  such  sheriff  or  other  officer  of  the  county  or  corpora- 
tion, wherein  the  property  was  taken,  as  may  be  in  office  at  the 
time  the  writ  issues.66  The  writ  is  issued  upon  the  mere  sug- 
gestion of  the  execution  creditor,  or  his  attorney,  as  a  matter 
of  course,  just  as  a  fi.  fa.  would  be  issued,  and  generally  without 
notice  to  the  defendant  or  any  order  from  the  court,  and  if 
the  clerk,  upon  request,  refuses  to  issue  the  writ,  he  may  be 
compelled  to  do  so  by  a  writ  of  mandamus®7  The  writ  is  fre- 
quently spoken  of  by  the  courts  as  a  writ  of  execution,  but  it 
is,  in  fact,  a  mere  order  of  sale  under  the  levy  of  the  original 
execution,  and  is  issued,  among  other  reasons,  to  prevent  the 
loss  of  the  lien  of  the  original  execution.  The  officer  holding 
a  fi.  fa.  may,  if  it  is  levied  before  the  return  day,  retain  the 
writ  until  after  the  return  day  and  make  sale  under  his  levy, 
and  no  writ  of  venditioni  exponas  is  then  necessary,  but  if  he 
dies  before  sale,  leaving  no  deputy,  or  returns  the  writ  showing  a 
levy  and  no  sale,  the  plaintiff  would  lose  the  lien  of  his  fi.  fa.  if 
he  abandoned  that  levy,  and  the  rights  of  other  creditors  might 
intervene  before  he  could  sue  out  another  execution,  or  sureties 
might  be  released  in  consequence  of  the  abandonment  of  the 

64.  Code,  §§  3593,  3594. 

65.  Code,  §   892. 

66.  Code,  §  3594. 

67.  Cummins  v.  Webb,  4  Ark.  229;  22  End.   PI.   &  Pr.   647. 


§  357 


VENDITIONI  EXPONAS 


673 


levy,  and  hence  he  seeks  to  enforce  the  lien  of  the  original  /?.  fa. 
by  a  sale  thereunder,  and  this  he  accomplishes  by  the  writ  of 
•rcnditioni  exponas.GS  There  must  have  been  a  prior  levy  and 
return,  but  no  sale,  in  order  to  justify  the  issuance  of  the  writ. 

68.  22  Encl.  PI.  &  Pr.  643,  ff;  4  Min.  Inst.  1039. 
—43 


CHAPTER  XLIII. 
ATTACHMENTS. 

§  358.  Nature  and  grounds. 

Non-resident  or  foreign  corporation. 

Removal  of  goods. 
§  359.  Courts  from  which  attachments  may  be  issued. 

Attachment  at  law. 

Attachment  in  equity. 

Attachment  from  a  justice. 

Attachment  where  no  suit  or  action  is  pending. 
§  360.  Proceedings  to  procure  attachment. 

In  equity. 

At  law. 

Attachment  where  no  suit  or  action  is  pending. 

Attachment   for  twenty   dollars   or   less. 
§  361.  Affidavit. 

Sufficiency. 

Jurisdiction. 

Conjunctive  and   disjunctive   statements. 

Who  may  make  affidavit. 

Time   of   making  affidavit. 

Amendments. 

Additional    affidavits. 

Defective  affidavits. 
§  362.  What  may  be  attached. 
§  363.  What  may  not  be  attached. 
§  364.  How  and  by  whom  property  is  attached. 

Tangible  personal  property. 

Choses  in   action. 

Real  property. 

By  whom  service  may  be  made. 
§  365.  Attachment  bonds. 
§  366.   Lien   of  attachment. 

Real  estate. 

Personal   property. 

Priorities. 

§  367.  When    attachment    to    issue. 
§  368.  Defences  to  attachments. 

Who  may  make  defence. 

What  defence   may  be   made. 

When   defence   may   be   made. 

How    defence    is   made. 


§    358  NATURE   AND  GROUNDS  675 

Defence  to  the  merits. 

Judgment  for  the  plaintiff. 

Order  of  publication. 

§  369.  Remedies    for    wrongful    attachments. 
§  370.  Holding  defendant  to  bail. 
§  371.  Appeal  and  error. 

§  358.    Nature  and  grounds. 

Attachments  are  wholly  creatures  of  statute,  and  the  grounds 
upon  which  they  may  be  issued  differ  more  or  less  in  the  diff.er- 
ent  States.  An  attachment  is  an  order  or  process  to  take  into 
custody  the  pe-rson  or  property  of  another  to  answer  a  demand 
to  be  thereafter  established,  or  to  enforce  obedience,  or  to  pun- 
ish for  disobedience,  to  some  lawful  judicial  order  theretofore 
made.  It  will  be  observed  that  this  definition  covers  three  classes 
of  attachments.  The  first  is  a  civil  process  to  answer  some  de- 
mand asserted  against  the  person  or  property  of  another.  The 
second  is  in  the  nature  of  a  criminal  process  to  enforce  obedience 
to  some  command  which  has  theretofore  been  made,  as,  for  ex- 
ample, where  a  witness  who  has  been  summoned  fails  to  attend,, 
he  may  by  proper  proceeding  be  attached  and  forcibly  brought 
into  court.  The  third  is  likewise  a  quasi-criminal  proceeding  to 
punish  a  person  for  disobedience  to  some  lawful  order  or  decree, 
as,  for  example,  where  an  injunction  order  has  been  disobeyed 
the  party  enjoined  may  be  attached  for  his  contempt.  The 
first  of  these  is  the  only  species  of  attachment  which  will  be  dis- 
cussed in  this  chapter.  An  attachment  as  a  civil  process  is  sard 
to  be  an  execution  by  anticipation.  It  lays  hold  of  the  property 
of  the  defendant  at  the  beginning  of  the  litigation  for  the  pur- 
pose of  satisfying  some  claim  or  demand  of  the  plaintiff  which  is 
to  be  established  in  the  future,  but  which  in  fact  may  never  be 
established.  While  an  execution  issues  only  after  judicial  in- 
vestigation and  determination  as  to  the  rights  of  parties,  an  at- 
tachment issues  before  any  such  investigation  or  determination 
has  been  had.  In  this  respect  it  is  harsh  towards  the  debtor.  It 
is  also  harsh  in  its  effect  upon  other  creditors  over  whom  the 
attaching  creditor  obtains  priority,  and  is  susceptible  to  great 
abuse.  It  is  a  statutory  remedy,  unknown  to  the  common  law, 
and  existing  only  by  virtue  of  statutes.  For  these  reasons  at- 


676  ATTACHMENTS  §    358 

tachment  laws  are  strictly  construed,  and  an  attachment  will 
never  be  sustained  until  all  the  requirements  of  the  statute  have 
been  complied  with.1  The  grounds  for  attachment  vary  more 
or  less  in  the  different  states,  but  those  provided  by  statute  in 
Virginia  are  such  as  prevail  in  most  of  the  states,  and  are  set 
forth  in  the  margin.2  The  language  of  the  statute  is  always 

1.  Claflin  v.   Steenbock,  18   Gratt.  842;    Delaplain  v.  Armstrong,  21 
W.  Va.  213;  Cosner  v.  Smith,  36  W.  Va.  788,   15   S.   E.  977. 

2.  Section  2959  of  the  Code  is  as  follows:     "If  at  the  time  of  or 
after  the  institution  of  any  action  at  law  'for  the  recovery  of  specific 
personal  property   or  a   debt   or   damages  for   the   breach   of  a   con- 
tract, express  or   implied,   or  damages  for  a  wrong  the  plaintiff,   his 
agent    or    attorney,    shall    make    affidavit    stating    that    the    plaintiff's 
claim  is  believed  to  be  just,  and  where  the  action  is  to  recover  spe- 
cific   personal    property    the    nature    and,    according    to    the    affiant's 
belief,  the  value  of  such  property  and  the  probable  amount  of  dam- 
ages the  plaintiff  will   recover   for  the  detention   thereof,  and  where 
it  is  to  recover  a  debt  or  damages  for  the  breach  of  a  contract,  ex- 
press or  implied,  or  damages  for  a  wrong,  a  certain  sum  which   (at 
least)   the  affiant  believes  the  plaintiff  is  entitled  to  or  ought  to  re- 
cover, and  stating  also  the  existence  to  the  best  of  the  affiant's  be- 
lief of  one  or  more  of  the  following  grounds  for  attachment:     That 
the  defendant  or  one  of  the  defendants: 

First.  Is  a  foreign  corporation  or  is  not  a  resident  of  this  state 
and  has  estate  or  debts  owing  to  said  defendant  within  the  county 
or  corporation  in  which  the  action  is  or  is  sued  with  a  defendant 
residing  therein,  or  that  the  defendant,  being  a  non-resident  of  this 
state,  is  entitled  to  the  benefit  of  any  lien,  legal  or  equitable,  on 
property,  real  or  personal,  within  the  county  or  corporation  in  which 
the  action  is,  and  the  word  estate  as  herein  used  shall  include  all 
rights  or  interests  of  a  pecuniary  nature  which  can  be  protected, 
enforced,  or  proceeded  against  in  courts  of  law  or  equity;  but  this 
provision  as  to  equitable  estates  and  interests  so  far  as  amendatory 
of  existing  laws  shall  not  apply  to  attachments  sued  out  before  the 
passage  of  this  act.  This  section  as  so  enlarged  shall  come  under 
the  provisions  of  section  twenty-nine  hundred  and  sixty-four,  con- 
cerning attachments  in  equity;  or, 

Second.  Is  removing  or  about  to  remove  out  of  this  State  with 
intent  to  change  his  domicile;  or, 

Third.  Is  removing,  intends  to  remove,  or  has  removed  the  spe- 
cific property  sued  for  or  his  own  estate  or  the  proceeds  of  the  sale 
of  his  property,  or  a  material  part  of  such  estate  or  proceeds,  out  of 


§    358  NATURE  AND  GROUNDS  677 

important  and  should  be  carefully  examined  whenever  it  is  neces- 
sary to  sue  out  an  attachment.  For  the  purpose  of  the  present 
discussion,  though  not  sufficiently  specific  for  practical  applica- 
tion, the  grounds  set  forth  in  the  statute  cited  in  the  margin  may 
be  briefly  summarized  as  follows,  to-wit :  (1)  that  the  defendant 
is  a  foreign  corporation,  or  is  not  a  resident  of  the  State;  (2) 
that  the  defendant  is  about  to  remove  himself  out  of  the  State 
with  intent  to  change  his  domicile;  (3)  that  the  defendant  is 
about  to  remove  his  property  out  of  the  State,  so  that  process  of 
execution  would  be  unavailing;  (4)  that  the  defendant  is  con- 
verting, or  is  about  to  convert,  or  has  converted  his  property,  or 
some  part  thereof  into  money,  securities,  or  evidences  of  debt, 
with  intent  to  hinder,  delay  or  defraud  his  creditors;  (5)  that 
the  defendant  has  assigned  or  disposed  of,  or  is  about  to  assign 
or  dispose  of  his  estate  or  some  part  thereof  with  the  intent  to 
hinder,  delay  or  defraud  his  creditors.  It  will  be  observed  that 
the  fraudulent  intent  of  the  debtor  is  applicable  only  to  the  last 
two  grounds  of  attachment.  The  section  we  have  been  discussing 
applies  only  to  an  attachment  issued  in  an  action  at  law,  which, 
of  course,  means  that  the  right  of  action  has  accrued.  The  at- 
tachment is  there  given  for  the  recovery  of  specific  personal 
property,  or  a  debt,  or  damages  for  a  breach  of  a  contract,  ex- 
press or  implied,  or  damages  for  a  wrong.  By  another  section 
of  the  Code  an  attachment  is  also  given  for  a  debt,  whether  it  is 
due  or  not,  where  it  appears  that  the  debtor  intends  to  remove, 
or  is  removing,  or  has  removed  his  effects  out  of  the  State. 
This  statute  contemplates  the  existence  of  the  relation  of  debtor 
and  creditor,  but  the  term  "debtor"  should,  in  the  construction  of 

this  State  so  that  process  of  execution  on  a  judgment  when  obtained 
in  said  action  will  be  unavailing;  or, 

Fourth.  Is  converting  or  is  about  to  convert  or  has  converted 
his  property  of  whatever  kind  or  some  part  thereof  into  money, 
securities,  or  evidences  of  debt  with  intent  to  hinder,  delay,  or  de- 
fraud his  creditors;  or, 

Fifth.  Has  assigned  or  disposed  of  or  is  about  to  assign  or  dis- 
pose of  his  estate  or  some  part  thereof  with  intent  to  hinder,  de- 
lay, or  defraud  his  creditors.  In  any  such  case  the  clerk  of  the 
court  in  which  the  action  'is  shall  issue  an  attachment  as  the  case 
may  require." 


678  ATTACHMENTS  §    358 

this  statute,  be  taken  in  its  largest  sense,  as  embracing  every  per- 
son against  whom  another  has  a  claim  for  breach  of  contract 
even  when  the  compensation  sounds  in  damages.3  The  word 
"claim"  is  as  broad  a  term  as  could  have  been  used  in  this  con- 
nection.4 But  the  statute  is  not  applicable  to  an  action  of  dam- 
ages for  a  wrong.5  An  attachment  may  also  issue  on  the  com- 
plaint of  a  lessor,  his  agent  or  attorney,  that  any  person  liable 
to  him  for  rent  intends  to  remove,  or  is  removing,  or  has  within 
thirty  days  removed  his  effects  from  the  leased  premises.6  Un- 

3.  Dunlop  v.   Keith,   1   Leigh   430,   432.     See   also,    Peter  v.    Butler, 
1  Leigh  285. 

4.  Myers  v.   McCormick,   109   Va.   160,   63   S.   E.   437. 

5.  Section  2961  of  the  Code  is  as  follows:     "On  complaint  by  any 
person,  his  agent  or  attorney,  whether  the  claim   of  such  person  is 
payable  or  not,  to  a  justice,  or  to  the  clerk  of  the  circuit  or  of  any 
city  court  of  the  county  or  corporation  in  which  the  debtor  against 
whom  the  claim  is  resides,  or  in  which  he  has  estates  or  debts  ow- 
ing to   him,  or  if  he  has  removed  from  the   State  in   which   he  last 
resided,  or  in  which  he  has  estate  or  debts  owing  to  him,  or  if  he 
has  never  resided  in  the  State  in  which  he  has  estate  or  debts  ow- 
ing to   him,  or  if  such  debtor  be  a  corporation   in  which    such   cor- 
poration  has   estate    or   debts   owing  to   it,   that   the   said    debtor   in- 
tends to  remove  or  is  removing,  or  has  removed  his  effects  out  of 
this    State,    so    that    there    will    probably    not    be    therein    effects    of 
such    debtor    sufficient    to    satisfy   the    claim .  when    judgment    is    ob- 
tained  therefor,   should   only  the   ordinary  process   of  law  be   issued 
to  obtain  the  judgment,  if  such  person,  his  agent  or  attorney,  make 
oath  to  the  truth  of  the  complaint  to  the  best  of  his  belief,  as  well 
as   to  the  amount  and  justice   of  the   claim,   and   if  the   same  is   not 
payable,  at  what  time  it  will  be  payable,  the  justice  or  clerk,  as  the 
case    may    be,    shall    issue    an    attachment    against    the    estate    of    the 
debtor  for  the  amount  so  stated." 

6.  Section  2962  of  the  Code  is  as  follows:     "On  complaint  by  any 
lessor,  his  agent  or  attorney,  to  a  justice  or  to  the  clerk  of  the  cir- 
cuit  court  of  the  county  or  of  the  circuit  or  any  city  court  of  the 
corporation  in  which  the  leased  premises  or  a  part  thereof  may  be, 
that  any  person  liable  to  him  for  rent  intends  to  remove,   or  is  re- 
moving,  or   has,   within   thirty   days,   removed   his   effects   from   such 
premises,    if   such    lessor,    his    agent    or    attorney,    make    oath    to    the 
truth  of  such  complaint  to  the  best  of  his  belief  and  to  the  rent  which 
is  reserved   (whether  in  money  or  other  thing),  and  will  be  payable 
within  one  year,  and  the  time  or  times  when   it  will  be  so  payable, 
and  also  make  oath  either  that  there  is  not,  or  he  believes,  unless  an 


§    358  NATURE   AND  GROUNDS  679 

der  this  statute,  the  lessor  is  allowed  to  attach  for  rent  that  "will 
be  payable  within  one  year."7 

Non-Resident  or  Foreign  Corporation. — A  person  intending 
to  remove  from  this  State  to  another  becomes  a  non-resident  of 
this  State  as  soon  as  he  commences  his  removal  and  before  he 
gets  beyond  the  limits  of  the  state.8  For  the  purpose  of  attach- 
ment laws  there  is  a  marked  distinction  between  "domicile"  and 
"residence."  To  constitute  a  domicile  two  things  must  concur, 
first  residence,  second,  the  intention  to  remain  there  for  an  un- 
limited time.  A  resident  has  to  have  a  permanent  abode  for  the 
time  being,  as  distinguished  from  a  mere  temporary  locality  of  ex- 
istence. Residence,  within  the  meaning  of  the  attachment  laws, 
means  the  act  of  abiding  or  dwelling  in  a  place  for  some  contin- 
uance of  time.9  If  a  party  domiciled  in  another  State,  comes 
into  this  State  to  do  business,  and  particularly  if  he  brings  with 
him  his  means  and  •  property  and  engages  in  a  business  which 
makes  his  stay  in  the  State  wholly  indefinite  and  uncertain  as  to 
duration,  he  is  a  resident  of  this  State,  and  not  subject  to  the  pro- 
vision of  the  attachment  laws  against  non-residents.10  So,  also, 
a  railroad  contractor  dwelling  in  Virginia  with  no  intention  of 
leaving,  and  engaged  in  work  which  will  occupy  him  indefinitely, 
but  whose  family  live  out  of  the  State  for  the  convenient  educa- 
tion of  his  children,  is  still  a  resident  of  the  State.11  An  abscond- 

attachment  issues,  that  there  will  not  be  left  on  such  premises  prop- 
erty liable  to  distress  sufficient  to  satisfy  the  rent  so  to  become  pay- 
able, such  justice  or  clerk,  as  the  case  may  be,  shall  issue  an  at- 
tachment for  the  said  rent  against  such  goods  as  might  be  dis- 
trained for  the  same  if  it  had  become  payable,  and  against  any  other 
estate  of  the  person  so  liable  therefor." 

7.  Other    Attachments. — Provision     is    also    made    for    attachments 
against  vessels  in   certain  cases   (Code,  §  2963),  and  against  tenants 
and    laborers   to   whom    advances    have    been    made    by   landlords    or 
farmers,  and  who  are  removing,   or  intend  to  remove  the   crops,  or 
their  share  thereof,  without  repaying  said  advances.   (Code,  §  2496.) 

8.  Clark  v.  Ward,  12  Gratt.  440. 

9.  Long  v.  Ryan,  30  Gratt.   718. 

10.  Long   v.    Ryan,  supra;    Andrews    v.    Mundy,    36    W.    Va.    22,    14 
S.   E.  414. 

11.  Didier  v.  Patterson,  93  Va.  534,  25  S.  E.  661;  Dean  v.  Cannon-, 
37  W.  Va.  123,  16  S.  E.  444. 


680  ATTACHMENTS  §    358 

ing  debtor  is  not  a  non-resident,  nor  is  a  volunteer  in  the  army, 
absent  with  his  command,  nor  one  serving  a  term  of  penal 
servitude  outside  the  State.12  A  person,  born  and  domiciled  in 
another  State,  who  comes  to  Fortress  Monroe  (which  is  within 
the  territorial  limits  of  this  state,  but  under  the  exclusive  juris- 
diction of  the  United  States)  for  the  purpose  of  enlisting  in  the 
army,  and  who  enlists  and  remains  an  enlisted  soldier  of  the 
United  States,  does  not  thereby  acquire  a  residence  in  Virginia 
so  as  to  defeat  the  right  of  a  creditor  to  attach  his  property  in 
Virginia  on  the  ground  that  he  is  a  non-resident.  The  mere  fact 
that  the  State  has  a  right  to  serve  process,  civil  and  criminal,  in 
the  territory  ceded  to  the  United  States  does  not  affect  the 
personal  status  of  one  who  is  a  resident  in  such  territory.13  If 
only  the  surety  in  a  debt  is  a  non-resident,  though  the  principal 
is  not,  the  property  of  the  surety  may  be  attached.14 

The  mere  fact  that  a  corporation  created  by  the  laws 
of  another  State  and  having  its  principal  office  there,  has  com- 
plied with  the  laws  of  Virginia  in  relation  to  doing  business  in 
this  State  does  not  make  such  corporation  a  resident  of  this  State 
within  the  meaning  of  the  foreign  attachment  laws.15 

Removal  of  Goods. — The  shipping  of  products  of  an  enterprise 
out  of  the  State  in  due  course  of  trade,  where  the  removal  is  not 
permanent  and  the  proceeds  are  brought  back  within  the  State, 
is  not  sufficient  ground  for  an  attachment.  The  statute  does  not 
mean  to  designate  as  a  cause  of  attachment  transitory  or  tem- 
porary removal.  What  is  meant  is  permanent  removal.16  In 
the  case  of  an  attachment  for  rent,  however,  against  a  tenant  re- 
moving his  effects  from  the  leased  premises,  the  statute  has  been 
held  to  apply  as  well  to  removals  in  the  regular  course  of  busi- 
ness as  to  other  removals.17  It  has  been  suggested  that  in  the 

12.  Starke  v.  Scott,  78  Va.  180;  Lyon  v.  Vance,  46  W.  Va.  781,  34 
S.  E.  761;  Guarantee  Co.  v.  Bank,  95  Va.  480,  28  S.  E.  909. 

13.  Bank  v.   Byrum,   110  Va.   708,  67  S.   E.  349. 

14.  Loop  v.  Summers,  3   Rand.  511. 

15.  Cowardin  v.   Ins.   Co.,  32   Gratt.   445;   Savage  v.   People,   45   W. 
Va.  275,  31  S.  E.  991;  Hall  v.   Bank,  14  W.  Va.  584;   Railroad  Co.  v. 
Koontz,  104  U.  S.  5. 

16.  Clinch  River  Mineral  Co.  v.  Harrison,  91  Va.  122,  21  S.  E.  660 

17.  Offterdinger'  r.  Ford,  92  Va.  636,  24  S.   E.  246. 


§    359      COURTS  FROM  WHICH  ATTACHMENTS  MAY  BE  ISSUED       681 

case  of  landlord  and  tenant  the  landlord  has  a  quasi  lien  on  the 
goods  of  the  tenant,  which  the  general  creditor  has  not  on  the 
goods  of  his  debtor.18  This  is  not  an  entirely  satisfactory  reason 
for  the  distinction  between  the  two  classes  of  cases,  but  the 
tenant  is  probably  sufficiently  protected  against  an  attachment 
by  the  fact  that  if  an  attachment  were  sued  out  by  the  landlord, 
he  would  be  compelled  to  show  that  the  removal  was  such  as 
would  probably  not  leave  sufficient  property  on  the  leased  prem- 
ises to  pay  the  rent.  If  the  removal  were  in  the  course  of 
trade,  that  is,  the  proceeds  were  used  to  replenish  the  stock, 
the  landlord  would  not  be  able  to  support  his  ground  of  attach- 
ment as  the  property  on  the  leased  premises  is  not  being  dimin- 
ished by  the  removal  in  the  course  of  trade. 

§  359.    Courts  from  which  attachments  may  be  issued. 

Under  the  Virginia  statute,  attachments  may  be  issued  either 
in  a  pending  action  at  law,  or  in  a  pending  suit  in  equity,  or 
when  no  suit  or  action  is  pending. 

Attachment  at  Law. — No  action  at  law  can  be  maintained,  and 
hence  no  attachment  as  ancillary  thereto  can  be  issued,  if  the 
claim  upon  which  it  is  founded  be  not  due,  or,  if  for  specific 
personal  property,  the  cause  of  action  has  not  matured.  If  the 
claim  be  due,  an  action  at  law  thereon  may  be  instituted,  and  if 
my  one  of  the  five  grounds  specified  in  Section  2959  of  the 

)de  exist,  upon  proper  affidavit  an  attachment  may  issue,  and 
if  the  claim  be  for  damages  for  a  wrong,  the  jurisdiction  at  law 
is  exclusive.  Here  a  regular  action  is  instituted  as  if  no  attach- 
ment were  to  issue,  and  when  the  affidavit  is  made,  either  at 
the  time  or  after  the  institution  of  the  action,  the  attachment  is- 
sues as  ancillary  thereto.  The  attachment  in  this  case  is  a  regu- 
lar formal  attachment  issued  by  the  clerk  and  directed  to  the 
officer  who  is  to  execute  it.  The  attachment  is  a  separate  and 
listinct  paper  from  the  declaration,  the  writ,  or  any  other  paper 
in  the  case.  It  is  made  out  by  the  clerk,  but  a  copy  is  served  by 
the  officer  in  addition  to  the  writ  in  the  action.  It  is  provided 

18.  7   Va.   Law   Reg.   77. 


682  ATTACHMENTS  §    359 

by  the  statute  that  it  may  be  issued  at  the  time  of  or  after  the 
institution  of  the  action.19 

Attachment  in  Equity. — When  a  person  has  a  claim,  legal  or 
equitable,  to  any  specific  personal  property  or  a  like  claim  to  any 
debt,  whether  such  debt  be  payable  or  not,  or  to  damages  for 
the  breach  of  any  contract,  express  or  implied,  if  such  claim 
exceed  $20,  exclusive  of  interest,  he  may  on  a  bill  in  equity 
filed  for  the  purpose  have  an  attachment  to  secure  and  enforce 
the  claim,  on  making  the  affidavit  required  by  the  statute.20  If 
the  claim  be  to  specific  personal  property,  or  a  debt,  or  dam- 

19.  Code,   §   2959. 

20.  Section  2964  of  the  Code  is  as  follows:     "When  a  person  has 
a  claim,  legal   or  equitable,   to  any   specific   personal  property,    or   a 
like  claim  to  any  debt,  whether  such  debt  be  payable  or  not,  or  to 
damages  for  the  breach  of  any  contract,  express  or  implied,  if  such 
claim  exceed  twenty  dollars,  exclusive  of  interest,  he  may,  on  a  bill 
in   equity   filed   for  the   purpose,   have   an   attachment   to    secure   and 
enforce    the    claim,    on    affidavit    made    by    himself,    his    agent    or    at- 
torney,  according  to   the   nature   of   the    case,    conforming  as   nearly 
as  its  nature  will  admit,  to  the  affidavit  required  by  section  twenty- 
nine   hundred   and   fifty-nine;   except   that   if  the  claim   be   to   a   debt 
not  payable,   the   affidavit   shall   also   state   the   time  when   it  will   be 
payable.      Upon    such    affidavit,    the    plaintiff    may    require    the    clerk 
to  endorse  on  a  summons  an  order  to  the  officer  to  whom  it  is  di- 
rected  to   attach   the   specific  property    (if   any  be   mentioned   in   the 
affidavit),  and  the  debts  owing  by  other  defendants   (if  any)    to  the 
defendant  against  whom  the  claim  is,  and  also  any   other  estate  of 
that  defendant,  whether  in  his  own  hands  or  in  the  hands  of  other 
defendants.     Any  attachment  under  this  section  shall  be  executed  in 
the  same  manner,  and  shall  have  the  same  effect  as  at  law,  but  the 
proceedings   therein    shall   be   the    same   as   in    other   suits   in    equity. 
And  the  court,  or  the  judge  thereof  in  vacation,  may  interpose  by  in- 
junction,  or  the   appointment   of  a   receiver   or   otherwise,   to   secure 
the  forthcoming  of  the  specific  property  sued  for,  and  so  much  other 
estate   as   will   probably   be   required   to   satisfy   any   future   order   or 
decree  that  may   be   made  in   the   cause.     This   section   shall   not   be 
construed   as  giving  to  a  court   of  equity  jurisdiction   to   enforce   by 
attachment  a   claim   to   a   debt   not  payable,  where   the   only   ground 
for  the  attachment  is  that  the  defendant,  or  one  of  the  defendants, 
against  whom  the  claim  is,  is  a  foreign  corporation,  or  is  not  a  resi- 
dent of  this  state,  and  has  estate  or  debts  owing  to  the  said  defend- 
ant within  the  county  or  corporation  in  which  the  suit  is.  or  is  sued 
with   a   defendant  residing  therein." 


§    359      COURTS  FROM  WHICH  ATTACHMENTS  MAY  BE  ISSUED       683 

ages  for  a  breach  of  contract,  express  or  implied,  the  jurisdiction 
at  law  and  in  equity  is  concurrent  if  the  claim  be  due.  If  the 
claim  be  for  damages  for  a  wrong  equity  has  no  jurisdiction. 
The  ground  of  the  attachment  may  be  any  one  or  more  of  those 
mentioned  in  §  2959.  If  the  claim  be  not  due,  and  the  ground  of 
attachment  be  that  the  defendant  has  removed,  is  removing,  or 
is  about  to  remove  his  effects  out  of  the  state,  an  attachment 
may  be  awarded  either  in  equity,  or  by  a  justice  or  clerk.  If 
any  other  ground  of  attachment  be  relied  on  and  the  claim  be 
not  due,  equity  alone  has  jurisdiction,  unless  the  only  ground 
for  attachment  be  that  the  defendant  or  one  of  the  defendants 
is  a  foreign  corporation  or  a  non-resident,  in  which  event  no 
attachment  can  issue  from  any  source.  In  other  words,  if  the 
claim  be  not  due,  and  the  only  ground  of  attachment  be  that  of 
non-residence  or  foreign  corporation,  for  manifest  reasons  no 
attachment  can  issue.  Thus  where  a  formal  attachment  in  equity 
is  issued  against  a  non-resident  on  the  ground  that  he  is  about 
to  make  an  assignment  to  hinder,  delay,  or  defraud  his  cred- 
itors, upon  failure  to  prove  the  fraud  the  suit  will  be  dismissed 
and  the  attachment  abated.  Having  failed  to  establish  fraud,  the 
plaintiff  presents  simply  the  case  of  a  suit  upon  an  unmatured  debt 
against  a  non-resident  for  which  no  attachment  is  given.21  If 
a  claim  which  is  not  due  be  for  $20  or  less  no  attachment  can 
issue. 

In  equity  no  formal  attachment  issues  at  all,  but  the  clerk  en- 
dorses on  the  summons  in  chancery  an  order  to  the  officer  to 
whom  the  summons  is  directed  to  attach  the  estate  of  the  de- 
fendant. 

Attachment  from  a  Justice. — For  a  claim  not  exceeding  $20 
which  is  due  and  payable,  where  the  ground  of  attachment  is 
that  the  defendant  is  a  foreign  corporation,  or  a  non-resident,  or 
is  about  to  quit  the  state  or  about  to  remove  his  effects  out  of 
the  state,  an  attachment  may  be  issued  by  a  justice  of  the  peace, 
and  all  of  the  proceedings  are  before  him,  unless  the  attachment 
is  levied  on  real  estate,  when  it  is  to  be  removed  to  the  proper 

21.  Wingo  v.  Purdy,  87  Va.  472,  12  S.  E.  970. 


684  ATTACHMENTS  §    358 

court.22  The  details  of  the  procedure  are  sufficiently  given  in 
the  statute.  The  jurisdiction  of  the  justice  in  this  case  is  exclu- 
sive. No  provision  is  made  for  an  attachment  of  this  class 
when  the  claim  is  not  due. 

22.  Section  2988  of  the  Code  is  as  follows:  "Any  person  having 
a  claim,  which  is  cognizable  by  a  justice  under  the  first  section  of 
chapter  one  hundred  and  forty,  if  such  claim  is  pajrable  and  does 
not  exceed  twenty  dollars  (exclusive  of  interest),  upon  complaint 
on  oath  by  such  person,  his  agent  or  attorney,  conforming  as 
nearly  as  may  be  to  the  affidavit  prescribed  by  sections  twenty-nine 
hundred  and  fifty-nine  and  twenty-nine  hundred  and  sixty-four,  as 
the  case  may  be,  in  which  affidavit  the  only  grounds  for  the  at- 
tachment stated  are  the  first,  second,  and  third  specified  in  section 
twenty-nine  hundred  and  fifty-nine,  or  one  or  more  of  them,  may 
obtain  from  such  justice  as  is  mentioned  in  section  twenty-nine 
hundred  and  sixty-one,  an  attachment  against  the  specific  property 
(if  any)  claimed,  and  against  the  estate  of  the  defendants,  if  the 
claim  be  not  for  specific  property,  directed  to  the  sheriff,  sergeant, 
or  constable  of  any  county  or  corporation,  and  made  returnable 
before  the  justice  issuing  the  attachment,  or  some  other  justice  of 
the  same  county  or  corporation,  and  thereupon  such  proceedings 
may  be  had  before  the  justice  as  would,  if  the  claim  exceeded  twenty 
dollars  (exclusive  of  interest)  be  had  before  a  court  except  that 
the  proceedings  shall  in  all  cases  be  without  formal  pleadings, 
and  an  order  of  publication  need  not  be  published  in  any  news- 
paper, and  the  justice  shall  try  and  decide  the  case  without 
a  jury.  The  attachment  may  be  served  on  a  corporation  as 
process  or  notice  may  be  served  under  section  thirty-two  hundred 
and  twenty-five.  All  bonds  taken  under  such  attachment  shall  be 
filed  with  the  clerk  of  the  county  or  corporation  to  which  the  jus- 
tice belongs.  If  such  attachment  be  levied  on  real  estate,  the  jus- 
tice shall  take  no  further  cognizance  of  it,  but  it  shall  be  removed 
by  him,  together  with  all  papers  and  proceedings  in  the  case,  into 
any  court  to  which  an  attachment  issued  by  a  justice  for  a  claim 
exceeding  twenty  dollars  (exclusive  of  interest)  might  have  been 
returnable,  and  be  further  proceeded  with  in  said  court,  as  if  it  had 
be.en  originally  cognizable  therein." 

It  will  be  observed  that  the  statute  declares  that  "an  order  of 
publication  need  not  be  published  in  any  newspaper"  but  it  provides 
no  substitute  for  the  publication.  If  the  defendant  is  not  a  resi- 
dent of  the  State,  no  provision  seems  to  be  made  for  service  of 
process  upon  him,  and  without  some  process  the  proceeding  will 
be  void.  Ante,  §  192. 


§    359      COURTS  FROM  WHICH  ATTACHMENTS  MAY  BE  ISSUED       685 

Attachment  Where  Xo  Suit  or  Action  Is  Pending. — Although 
no  suit  or  action  be  pending,  and  the  claim  of  the  plaintiff  be  not 
due,  it  is  provided  by  statute  that  an  attachment  may  be  issued 
in  two  cases :  ( 1 )  where  the  debtor  intends  to  remove,  or  is  re- 
moving, or  has  removed  his  effects  out  of  this  state,  so  that 
there  will  probably  not  be  therein  effects  of  such  debtor  suffi- 
cient to  satisfy  the  claim,  when  judgment  is  obtained  therefor, 
should  only  the  ordinary  process  of  law  be  issued  to  obtain  the 
judgment.23  In  this  instance,  the  attachment  may  issue  "whether 
the  claim  of  such  person  is  payable  or  not;"  and  (2)  where  a 
tenant  intends  to  remove,  or  is  removing,  or  has,  within  thirty 
days,  removed  his  effects  from  the  leased  premises,  so  that 
there  will  not  be  left  thereon  property  liable  to  distress  suffi- 
cient to  satisfy  the  rent  to  become  payable.24  In  this  instance, 
the  attachment  only  issues  where  the  claim  is  not  due,  but 
will  become  due  within  one  year.  If  the  claim  for  rent  is  due 
the  proper  remedy  is  a  distress  warrant.  Upon  filing  before 
the  justice  or  clerk  the  proper  affidavit  required  by  the  statute, 
that  officer  issues  a  formal  attachment  (a  separate,  distinct  and 
formal  paper),  against  the  estate  of  the  debtor  for  the  amount 
claimed  in  the  affidavit.  This  attachment  is  directed  to  the  sher- 
iff, sergeant  or  constable  of  any  county  or  corporation,  and  if  the 
claim  exceed  S20  (exclusive  of  interest)  is  made  returnable  at 
the  option  of  the  plaintiff  to  the  next  term  of  the  circuit  court 
of  the  county  or  of  the  circuit  or  any  city  court  having  jurisdic- 
tion of  the  subject  matter  of  the  corporation  in  which  such  jus- 
tice or  clerk  resides.  If  the  claim  does  not  exceed  $20  (ex- 
clusive of  interest),  the  attachment  is  returnable  and  proceeded 
upon  according  to  the  provisions  of  §  2988  of  the  Code,25  pro- 
viding that  when  issued  by  the  clerk  the  attachment  shall  be  re- 
turnable before  some  justice  of  his  county  or  corporation.26 
Here  there  is  no  action  at  law  and  no  suit  in  equity  but  simply 
the  attachment  itself. 

23.  See  §  2961,  copied  in  note   5  to  §  358,  ante. 

24.  See  §  2962,  copied  in  note  6  to  §  358,  ante. 

25.  See  ante,  §  359,  note  22. 

26.  Code,   §  2965. 


686  ATTACHMENTS  §    360 

§  360.    Proceedings  to  procure  attachment. 

The  mode  of  procuring  the  attachment  is  dependent,  of 
course,  upon  the  tribunal  from  which  the  attachment  is  to  issue. 

In  Equity. — The  procedure  in  equity  is  the  simplest  of  all  the 
methods  of  obtaining  an  attachment.  The  bill  is  prepared,  set- 
ting forth  with  the  needed  particularity  the  plaintiff's  claim, 
and  also  the  facts  relied  upon  to  entitle  the  complainant  to  an 
attachment.  This  is  taken  to  the  clerk's  office,  lodged  with  the 
clerk,  and  a  memorandum  made  for  the  issuance  of  the  proc- 
ess. Generally,  at  the  same  time  an  affidavit  is  prepared  and 
made  before  the  clerk  or  some  officer  authorized  to  administer 
an  oath,  setting  forth  the  ground  or  grounds  for  the  attachment. 
This  is  filed  with  the  clerk.  If  any  persons  have  in  their  hands 
effects  which  it  is  desired  to  attach,  or  are  indebted  to  the  de- 
fendant these  are  generally  made  parties  defendants.  The  clerk 
then  issues  the  summons  in  the  suit  and  endorses  on  the  sum- 
mons an  order  to  attach  the  effects  of  the  defendant.  He  will 
also  make  copies  to  be  served  on  all  the  parties  designated  as 
being  indebted  to  the  defendant,  or  having  in  their  hands  prop- 
erty belonging  to  him.  If  the  plaintiff  desires  the  officer  to  take 
into  his  custody  the  attached  effects  he  is  required  to  give  bond 
with  surety  to  be  approved  by  the  clerk  as  hereinafter  pointed 
out.  If  this  bond  is  given  at  the  time  of  or  before  the  suing 
out  of  the  attachment  the  clerk  also  endorses  on  the  summon? 
the  fact  that  the  bond  has  been  given,  and  a  direction  to  the  of- 
ficer to  take  the  property  into  his  custody.  The  procedure  in 
equity  is  recommended  as  being  the  simplest  and  least  liable  to 
objection  on  account  of  informality.  Furthermore,  equity  has 
jurisdiction  in  all  the  cases  in  which  there  is  jurisdiction  at  law, 
except  the  single  case  of  damages  for  a  wrong,  and  in  addition 
to  this,  as  has  been  hereinbefore  pointed  out,  equity  has  juris- 
diction where  the  claim  of  the  plaintiff  (whether  legal  or  equi- 
table) is  not  due,  in  which  case  there  is  no  jurisdiction  at  law, 
so  that  there  is  less  opportunity  for  mistake  on  the  subject  of 
jurisdiction  in  equity  than  elsewhere.  In  fact,  the  attachment  in 
equity  is  the  most  comprehensive  of  all  the  attachments  given 
by  the  Virginia  statute. 


§    360  PROCEEDINGS  TO  PROCURE  ATTACHMENT  687 

At  Law. — If  the  procedure  be  at  law,  a  regular  action  is  in- 
stituted just  as  if  no  attachment  were  to  issue,  and  the  attach- 
ment is  ancillary  to  the  action.  Here,  as  pointed  out,  the  claim 
must  be  due.  Generally,  a  memorandum  is  made  for  the  action 
and  the  clerk  makes  out  the  writ.  If  any  person  is  to  be  desig- 
nated as  having  in  his  hands  effects  of  the  debtor  or  as  being  in- 
debted to  him  a  separate  statement  of  this  in  writing  may  be  de- 
livered to  the  clerk,  or  it  may  be  made  a  part  of  the  memorandum 
for  the  action.  This  is  done  by  following  the  memorandum  for 
the  writ  with  a  statement  on  the  memorandum  book  to  the  fol- 
lowing effect:  ''The  defendant  is  a  non-resident  of  this  State, 
having  debts  owing  to  him  and  estate  coming  to  him  in  the 
county  of  Rockbridge.  Issue  an  attachment  and  designate  Frank 
Leynian  and  Henry  Brew  as  having  effects  of  the  defendant 
in  their  possession  and  as  being  indebted  to  the  defendant."27 
An  affidavit  is  then  made  and  lodged  with  the  clerk,  showing 
the  nature  of  the  plaintiff's  claim  and  the  grounds  for  the  at- 
tachment. The  form  of  such  an  affidavit  is  given  in  the  mar- 
gin. -s  The  clerk  then  makes  out  a  regular,  formal  attachment, 

27.  Hilton  r..  Consumers  Can  Co.,  103  Va.   255,  48   S.   E.  899. 

28.  FORM   OF  AFFIDAVIT. 

State  of  Virginia  i 

County  of  Rockbridge     I 

This  day  ffenry  Jones  personally  appeared  before  me,  Gabriel 
Sliiclds,  a  notary  public,  in  and  for  the  county  of  Rockbridge,  in  the 
State  of  Virginia,  and  made  oath  before  me  in  my  said  county  that 
an  action  of  assuinpsit  has  been  instituted  in  the  Circuit  Court  of 
said  county  by  the  said  Henry  Jones,  plaintiff,  against  William  Brown. 
defendant,  upon  an  open  account  due  by  the  said  defendant  to  the 
said  plaintiff,  a  copy  of  which  is  filed  with  the  declaration  in  said 
action,  for  the  sum  of  $1000.00,  with  interest  thereon  from  the  first 
day  of  December,  1911,  until  payment,  which  sum  at  the  least  affi- 
ant believes  that  plaintiff  is  entitled  to  and  ought  to  recover,  that 
affiant  believes  that  the  plaintiff' s. claim  is  just  and  justly  due  him 
and  that  no  part  thereof  has  been  paid,  and  that  affiant  further  be- 
lieves that  the  defendant  intends  to  remove  his  estate  or  the  proceeds 
of  the  sale  thereof,  or  a  material  part  of  such  estate  or  proceeds  out  of 
this  State  so  that  process  of  execution  on  a  judgment  when  obtained 
in  said  action  rcill  be  unavailing. 

Given  under  my  hand  this  the  first  day  of  December,  1911. 

Gabriel  Shields,  Notary  Public. 


688  ATTACHMENTS  §    360 

which  is  a  separate  and  distinct  paper,  independent  of  the  dec- 
laration, writ,  or  any  other  paper  in  the  case.  The  form  of 
such  an  attachment  is  given  in  the  margin.29  The  clerk  then 
makes  out  a  copy  of  the  attachment  to  be  served  on  each  of  the 

29.  Form  of  Attachment  issued  by  clerk  in  action  of  assumpsit. 
The   Commonwealth   of   Virginia: 

To  the  Sheriff  of  Rockbridge  County:     Greeting: 

Whereas  Henry  Jones,  the  plaintiff  in  an  action  of  assumpsit  upon 
an  open  account  now  pending  against  William  Brown  in  the  circuit 
court  of  Rockbridge  county,  has  this  day  made  affidavit  before  Gabriel 
Shields,  a  notary  public,  for  said  county,  as  duly  appears  by  the  cer- 
tificate of  the  said  Gabriel  Shields,  that  the  amount  of  the  said 
affiant's  claim  in  the  said  action  is  $1000,  the  principal  money,  with 
legal  interest  thereon  from  the  first  day  of  December,  1911,  until  paid, 
which  sum  at  the  least  affiant  believes  that  the  plaintiff  is  entitled 
to  and  ought  to  recover,  and  that  he  believes  that  the  said  claim 
is  just  and  is  justly  due  to  him  and  that  no  part  thereof  has  been 
paid,  and  that  he  further  believes  that  the  said  William  Brown  intends 
to  remove  his  estate  or  the  proceeds  of  the  sale  thereof  or  a  material 
part  of  such  estate  or  proceeds  out  of  this  State  so  that  process  of  exe- 
cution when  obtained  in  said  action  will  be  unavailing. 

These  are  therefore  in  the  name  of  the  Commonwealth  of  Vir- 
ginia to  command  you  forthwith  to  attach  so  much  of  the  estate  of 
the  said  William  Brown  as  will  be  sufficient  to  satisfy  the  said  sum 
of  $1,000.00,  the  principal,  with  legal  interest  thereon  as  aforesaid, 
and  so  to  provide  that  the  said  estate  so  attached  may  be  forthcom- 
ing and  liable  to  further  proceedings  therein  to  be  had  before  the 
said  court  at  the  next  term  thereof  and  that  you  have  this  writ  at 
the  clerk's  office  of  the  said  circuit  court  at  rules  to  be  holden  for 
the  said  court  on  the  first  Monday  in  January  next  and  that  you  then 
and  there  make  known  how  you  have  executed  the  same. 

Witness  R.  R.  Witt,  clerk  of  our  said  court  at  the  courthouse  of 
the  said  county  on  the  first  day  of  December,  1911,  and  in  the 
ijdth  year  of  the  commonwealth. 

Teste,  R.  R.   Witt,  clerk. 

In  the  above  form,  the  attachment  is  addressed  to  the  sheriff.  The 
statute  provides  that  any  attachment  may  be  directed  to  the  sheriff, 
sergeant  or  constable  of  any  county  or  corporation.  Code,  §  2965. 
Of  course,  the  form  of  the  affidavit  and  the  attachment  will  have 
to  be  changed  as  to  names  of  parties,  dates,  nature  of  the  claim, 
amount,  time  from  which  interest  runs,  and  the  ground  of  attach- 
ment to  fit  the  particular  case.  •  These  are  all  printed  in  italics,  so 
as  to  indicate  where  the  changes  would  occur. 


§    360  PROCEEDINGS  TO  PROCURE  ATTACHMENT  689 

parties  designated  with  an  endorsement  on  each  copy  that  the  per- 
son so  designated  is  required  to  appear  at  the  term  of  the  court 
to  which  the  attachment  is  returnable,  and  disclose  on  oath  in 
what  sum  he  is  indebted  to  the  defendant,  and  what  effects  of 
the  defendant  he  has  in  his  hands.  The  attachment  and  these 
copies  are  delivered  by  the  clerk  to  the  officer  and  he  proceeds 
to  execute  it.  The  attachment  here,  as  in  equity,  may  be  issued 
after  the  suit  is  instituted,  as  well  as  at  the  time  it  is  instituted. 
Some  times  when  the  suit  or  action  is  brought  the  plaintiff  does 
not  know  of  any  ground  for  an  attachment,  but  discovers  such 
ground  afterwards.  The  procedure  then  is  similar  to  that 
pointed  out  where  the  attachment  issues  at  the  time  of  the  com- 
mencement of  the  suit  or  action. 

Attachment  Where  No  Action  or  Suit  Is  Pending.— If  no  suit 
or  action  be  pending,,  the  justice  or  clerk,  as  the  case  may  be, 
upon  a  proper  oath  conforming  to  §§  2961  and  2962,  and  spe- 
cially pointing  out  at  what  time  the  debt  will  be  payable  issues  a 
formal  attachment  (a  separate,  distinct,  formal  paper)  against 
the  estate  of  the  debtor  for  the  amount  claimed  in  the  affidavit. 
The  attachment  follows  the  affidavit  and  generally  recites  it, 
and  where  the  claim  is  in  excess  of  $20  (exclusive  of  interest) 
is  returnable  to  the  next  term  of  the  circuit  court  of  the  county, 
or  to  the  like  term  of  the  circuit  or  any  city  court  of  the  cor- 
poration having  jurisdiction  of  the  subject  matter  in  which  such 
justice  or  clerk  resides,  or  to  some  rule  day  thereof. 

The  forms  of  the  affidavit  and  attachment  for  rent  not  due 
are  given  in  the  margin.30 


30.  AFFIDAVIT  FOR  ATTACHMENT  FOR  RENT  NOT  DUE. 
State  of  Virginia  ) 

County  of  Rockbridge    f          to-wit: 

This  day  Henry  Jones  personally  appeared  before  me.  Gabriel 
Shields,  a  Justice  of  the  Peace,  in  and  for  the  county  of  Rockbridge 
in  the  State  of  Virginia,  and  made  oath  before  me  in  my  said  county 
that  William  Bron'n  is  his  tenant  and  is  liable  to  him  for  rent  re- 
served upon  contract  for  certain  premises  situate  in  the  county  of 
Rockbridge,  in  the  sum  of  $300,  which  sum  is  payable  on  December 
31,  1911,  no  part  of  which  has  been  paid,  and  that  he  verily  believes 
that  the  said  William  Brown  intends  to  remove  his  effects  from 

—44 


690  ATTACHMENTS 

Attachment  for  Twenty  Dollars  or  Less. — Here  a  complaint 
on  oath  is  made,  by  the  plaintiff,  his  agent  or  attorney,  conform- 
ing as  nearly  as  possible  to  the  affidavit  in  an  action  at  law,  but 
the  only  grounds  upon  which  an  attachment  may  be  issued  for 
a  claim  of  this  nature  are  the  first  three  mentioned  in  Section 
2959,  to-wit:  (1)  that  the  defendant  is  a  foreign  corporation 
or  a  non-resident  of  the  State;  (2)  that  he  is  removing  or  about 

the  leased  premises  before  the  time  for  the  payment  of  the  rent 
aforesaid,  and  that  he  verily  believes  unless  an  attachment  issues 
there  will  not  be  left  on  such  premises  property  liable  to  distress 
sufficient  to  satisfy  the  rent  so  to  become  payable. 

Given  under  my  hand  this  the  first  day  of  October,  1911. 

Gabriel  Shields,  Justice   of  the   Peace. 

FORM  OF  ATTACHMENT   FOR  RENT  NOT  DUE. 
Commonwealth   of  Virginia: 

To  the  Sheriff  of  Rockbridge  county: 
Greeting: 

Whereas  Henry  Jones  has  this  day  made  oath  before  me  Gabriel 
Shields,  a  Justice  of  the  Peace  in  and  for  the  county  of  Rockbridge, 
in  the  State  of  Virginia,  that  William  Brown  is  his  tenant  and  is  lia- 
ble to  him  for  rent  reserved  upon  contract  for  certain  premises  sit- 
uate in  the  county  of  Rockbridge  aforesaid,  in  the  sum  of  $300,  which 
will  become  due  and  payable  on  December  31,  1911,  no  part  of  which 
has  been  paid,  and  that  the  said  affiant  verily  believes  that  the  said 
William  Brown  intends  to  remove  his  effects  from  the  leased 
premises  before  the  time  for  the  payment  of  the  rent  aforesaid, 
and  that  unless  an  attachment  issues  there  will  not  be  left  on  such 
premises  property  liable  to  distress  sufficient  to  satisfy  such  rent 
so  to  become  payable. 

These  are  therefore  in  the  name  of  the  Commonwealth  to  com- 
mand you  to  attach  such  of  the  goods  of  the  said  William  Brown, 
or  his  assignee  or  undertenant,  as  might  be  distrained  for  the  said 
rent  if  it  had  become  payable,  and  any  other  estate,  real  or  per- 
sonal, of  the  said  William  Brown,  or  so  much  thereof  as  will  be  suf- 
ficient to  satisfy  to  the  said  Henry  Jones  the  rent  aforesaid,  and  that 
you  secure  said  goods  and  estate  so  attached  in  your  hands,  or  so 
provide  that  the  same  may  be  liable  to  further  proceedings  thereon 
to  be  had  at  the  next  term  of  the  circuit  court  of  the  county  of 
Rockbridge,  when  and  where  you  are  to  return  how  you  have  exe- 
cuted this  writ. 

Given  under  my  hand  this  the  first  day  of  October,  1911. 

Gabriel  'Shields,  Justice  of  the  Peace. 


§    361  AFFIDAVIT  691 

to  remove  himself  out  of  the  State,  with  intent  to  change  his 
domicile,  or  (3)  that  he  is  removing,  intends  to  remove,  or  has 
removed  the  specific  property  sued  for,  or  his  own  estate  out  of 
this  State.31  The  justice  then  issues  an  attachment  based  upon 
the  complaint,  and  the  attachment  proceedings  thereon  are  had 
before  the  justice  without  formal  pleadings,  and  without  neces- 
sity for  an  order  of  publication  in  a  newspaper,  and  the  justice 
tries  and  decides  the  case  without  a  jury.  If,  however,  the  at- 
tachment be  levied  on  real  estate,  it  is  the  duty  of  the  justice  to 
remove  the  case,  with  all  papers  and  proceedings  thereon  to  any 
court  to  which  an  attachment  issued  by  him  for  a  claim  exceed- 
ing twenty  dollars  might  have  been  returnable.32 

§  361.    Affidavit. 

An  affidavit  is  a  voluntary  e.\~  parte  written  oath  or  affirma- 
tion made  before  some  officer  authorized  to  administer  an  oath. 
It  is  usually  signed  by  the  affiant,  but  it  is  said  that  in  the  ab- 
sence of  positive  statute,  or  some  rule  of  court,  the  signature  is 
not  necessary.33  In  Virginia  and  West  Virginia  it  is  rare  that  a 
strict  affidavit  is  used  for  any  purpose.  What  is  generally  used 
is  a  certificate  of  some  officer  authorized  to  administer  an  oath 
(not  signed  by  the  affiant)  that  the  affiant  made  oath  before  him 
to  certain  facts  set  forth  in  the  certificate,  and  this  has  been  re- 
garded as  sufficient,  even  under  the  strict  rule  of  construction 
applicable  to  attachment  laws. 

Sufficiency. — Probably  more  particularity  is  required  in  the 
form  of  the  affidavit  than  in  the  form  of  any  other  paper  con- 
nected with  attachments.  Affidavits  are  strictly  construed,  and 
the  omission  of  any  of  the  requirements  of  the  statute  is  fatal 
to  the  attachment.  There  must  be  a  substantial  compliance  with 
the  statute,  and  if  the  affidavit  is  made  out  of  the  State  it  must 
be  itself  duly  authenticated.  The  seal  of  a  notary  public  out  of 
the  State  does  not  alone  verify  and  authenticate  his  act,  except 
as  regards  certain  foreign  or  interstate  matters,  and  except  in 

31.  See  Code,  §  2959,  quoted  in  §  358,  note  2,  ante,  for  exact  lan- 
guage. 

32.  Code,  §  2988,  quoted  in  §  359,  note  22,  ante. 

33.  1  End.  PI.  &  Pr.  315. 


692  ATTACHMENTS  §    361 

those  cases  where  the  domestic  statute  declares  that  it  shall  be 
self  authenticating.34  While  strictness  and  certainty  in  an  affi- 
davit for  attachment  is  required,  it  is  not  necessary  that  compli- 
ance with  the  statute  shall  be  literal.35  If  the  language  of  the 
affidavit  necessarily  implies  a  fact  it  is  sufficient.  Hence  an  affi- 
davit "that  the  claim  is  just"  and  "that  the  defendant  is  con- 
verting," etc.,  is  a  sufficient  compliance  with  a  statute  which  re- 
quires an  affidavit  "that  the  claim  is  believed  to  be  just"  and  "that 
to  the  best  of  affiant's  belief  defendant  is  converting,"  etc.3" 
An  affidavit,  however,  which  omits  "at  the  least"  from  the  clause 
"which  (at  the  least)  affiant  believes,"  or  the  word  "justly" 
from  the  clause  "justly  entitled  to  recover,"  or  substitutes 
"ought"  for  "is  entitled  to,"  or  "thinks"  for  "believes"  the  plain- 
tiff is  entitled  to  or  ought  to  recover,  is  bad.37  It  is  not  neces- 
sary that  an  attachment  issued  by  a  justice,  or  the  affidavit  upon 
which  it  is  based,  should  describe  the  character  of  the  debt  of 
the  plaintiff,  whether  due  by  a  bond,  note  or  account.  The  stat- 
ute does  not  require  the  writ  to  describe  the  claim  with  the  pre- 
cision of  the  declaration.  The  amount  due  must  be  specified  as 
a  guide  to  the  officer  that  he  may  attach  so  much  of  the  debtor's 
estate  as  may  be  sufficient  to  satisfy  the  debt  and  costs.  The 
evidence  of  the  debt  is  to  be  exhibited  to  the  court  which  passes 
upon  the  validity  of  the  claim.38  A  paper  purporting  to  be  an 
affidavit,  but  which  does  not  show  that  the  affiant  was  sworn, 
nor  the  amount  to  which  the  plaintiff  is  entitled  and  the  nature 

34.  Bohn  v.  Zeigler,  44  W.  Va.  402,  29  S.   E.  983;   Corbin  v.   Bank, 
87  Va.  661,   13   S.   E.  98.     Section   174  of  the   Code   declares   that   an 
affidavit   before    a   non-resident    notary    shall   be    deemed    to   be    duly 
authenticated    if   it    be    subscribed    by    him    with    his    official    seal    at- 
tached without  being  certified   by  any  other  officer.      It   also   desig- 
nates  the   method   in    which   affidavits   taken   by   other   persons    shall 
be  authenticated. 

35.  Jones  v.  Anderson,  7  Leigh  at  p.  311. 

36.  Clinch  River  Min.  Co.  v.  Harrison,  91  Va.  122,  21  S.  E.  660. 

37.  Altmeyer  v.   Caulfield,   37   W.   Va.   847,   17    S.    E.   409;    Dulin  v. 
McCaw,  39  W.  Va.  721,  20  S.   E.  681;   Sommers  v.  Allen,  44  W.  Va. 
120,  28  S.  E.  787;  Rittenhouse  v.  Harman,  7  W.  Va.  380.     For  other 
rulings    on    affidavits,    see   annotations    Code    W.    Va.    p.    650;    2    Bar. 
Law  Pr.  933;  Note  76  Am.  St.  Rep.  800;  11  Anno.  Cas.  27. 

38.  McCluny  v.  Jackson,   6   Gratt.   96,   103. 


§    361  AFFIDAVIT  693 

of  the  plaintiff's  claim,  is  not  sufficient  as  a  foundation  for  an 
attachment.39  If  the  bill  upon  which  an  attachment  issues  con- 
tains all  necessary  averments,  and  is  sworn  to  and  filed  before 
the  attachment  issues,  and  the  affidavit  adopts  the  bill,  this  ren- 
ders the  affidavit  sufficient.40 

Jurisdiction. — It  is  said  that  "in  most  jurisdictions  the  stat- 
utes require  that  an  affidavit  shall  be  made  before  the  writ  may 
issue,  and  if  the  affidavit  is  not  made,  or  if  it  is  defective  when 
made,  the  court  will  be  without  jurisdiction  and  the  attachment 
consequently  void."41  It  is  generally  conceded  that  the  total 
absence  of  an  affidavit  will  render  the  suit  one  without  jurisdic- 
tion, but  the  same  is  not  true  of  a  defective  affidavit.  A  defective 
affidavit  is  not  void  but  voidable  only,  and  liable  to  be  quashed 
in  a  direct  proceeding  for  that  purpose,  but  it  is  not  a  total  nul- 
lity and  cannot  be  collaterally  assailed.  If  an  attachment  has 
been  issued  upon  a  defective  affidavit,  and  property  sold  there- 
under, the  validity  of  the  attachment  proceedings  cannot  be 
questioned  in  a  suit  against  the  purchaser  at  an  attachment  sale 
to  recover  the  property  purchased.42  Where  a  suit  in  equity  is 
brought  under  a  statute  on  a  legal  demand,  and  an  attachment 
is  sued  out  as  ancillary  thereto,  the  jurisdiction  of  the  court  of 
equity  rests  solely  on  the  attachment.  It  is  said  that  when  the 
attachment  is  sued  out,  though  on  a  defective  affidavit,  equity 
has  jurisdiction,  and  that  mere  error  in  the  proceeding,  such  as 
a  defect  in  the  affidavit,  does  not  destroy  the  jurisdiction  of  the 
court,  and  that  while  the  attachment  might  be  abated  and  the 
suit  in  equity  dismissed  on  account  of  defects  in  the  affidavit  if 
brought  to  the  attention  of  the  court  in  that  suit,  yet  the 
proceeding  is  not  a  void  proceeding,  the  court  is  not  entirely 
without  jurisdiction,  and  its  judgment  cannot  be  collaterally  as- 
sailed;43 but  on  this  proposition  the  courts  are  not  entirely  in 
harmony.  In  Virginia  the  jurisdiction  of  attachments  in  equity 

39.  Cosner  v.   Smith,   36   W.   Va.   788,   15    S.   E.   977. 

40.  Sims  v.  Tyrer,  96  Va.  5,  26  S.   E.  508. 

41.  3  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  206. 

42.  Cooper  v.   Reynolds,   10  Wall.   308. 

43.  Miller  v.  White,  46  W.  Va.  at  pp.  70,  71,  33  S.  E.  332;  Cooper 
v.  Reynolds,  supra. 


694  ATTACHMENTS  §    361 

on  purely  legal  demands  is  not  rested  on  the  attachment,  but  on 
the  affidavit,  which  is  the  basis  of  the  attachment ;  the  court  saying 
"courts  acquire  jurisdiction  in  attachments  in  equity  alone  by  force 
of  the  affidavit."44  The  question,  however,  arose  in  a  direct  pro- 
ceeding to  avoid  the  attachment,  and  it  is  not  stated  what  would 
have  been  the  effect  if  the  attack  has  been  collateral  instead  of 
direct. 

The  jurisdiction  of  attachments  generally  depends  on  the  regu- 
larity of  the  proceedings,45  and  this  regularity  must  appear  on  the 
face  of  the  proceedings,46  but  whenever  the  validity  of  an  attach- 
ment is  involved,  or  the  jurisdiction  of  the  court  is  questioned,  the 
affidavit  is  part  of  the  record,  though  not  mentioned  in  the  declara- 
tion or  bill.47 

Conjunctive  and  Disjunctive  Statements. — If  more  than  one 
ground  of  attachment  is  relied  on,  it  is  well  settled  that  the  grounds 
should  be  stated  in  the  conjunctive  and  not  in  the  disjunctive,  as 
otherwise  it  would  be  impossible  to  tell  which  ground  was  relied 
upon  to  sustain  the  attachment.  It  is  equally  well  settled,  however, 
that  two  or  more  phases  of  the  same  fact  may  be  stated  in  the 
disjunctive.  Thus  an  affidavit  which  states  that  "affiant  believes 
that  some  one  or  more  of  the  following  five  grounds  exist  for  an 
attachment"  is  too  indefinite,  and  is  bad,  as  it  is  impossible  for  the 
defendant  to  determine  upon  which  of  the  grounds  the  plaintiff 
intends  to  rely.48  But  an  affidavit  which  states  as  the  ground  for 
an  attachment  that  the  defendant  has  property  or  rights  of  action 
which  he  conceals,  is  good,  notwithstanding  the  disjunctive  "or"  is 
used,  as  it  is  apparent  that  but  one  ground  of  attachment  is  alleged 
under  the  statute.49  The  difficulty  lies,  however,  in  the  applica- 
tion of  this  rule  to  the  facts  of  the  particular  case.  For  in- 
stance, it  has  been  held  that  an  affidavit  which  states  that  the 
defendant  has  disposed  of  or  assigned  his  property,  or  a  part 
thereof,  or  is  about  to  do  so,  with  intent  to  defraud  his  creditors,. 

44.  Taylor  v.   Sutherlin,   107  Va.  787,  797,  60  S.   E.   132. 

45.  'Jones  r.   Anderson,   7   Leigh   308,   313. 

46.  McAllister  v.   Guggenheimer,  91  Va.  317,  21  S.   E.  475. 

47.  Miller  v.  White,  46  W.  Va.  67,  71,  33  S.   E.  332. 

48.  Roberts  v.  Burns,  48  W.  Va.  92,  35  S.  E.  922. 

49.  Sandheger  v.  Hosey,  26  W.  Va.  221;  26  Anno.  Cas.  27. 


§    361  AFFIDAVIT  695 

is  bad ;  while,  on  the  other  hand,  it  has  been  held  that  an  affidavit 
which  alleges  that  the  debtor  is  converting,  or  is  about  to  convert 
his  property  into  money,  or  is  otherwise  about  to  dispose  of  his 
property  with  intent  of  placing  it  beyond  reach  of  his  creditors, 
is  not  objectionable,  as  it  only  states  several  phases  of  the  same 
fact.50 

Who  May  Make  Affidavit. — It  is  provided  by  statute  in  Vir- 
ginia that  the  affidavit  for  an  attachment  may  be  made  by  the 
plaintiff,  his  agent  or  attorney.51  Attorney,  however,  manifestly 
means  attorney  at  law.  Whether  an  affidavit  (in  fact  made  by 
an  agent)  must  expressly  show  on  its  face  that  the  affiant  is  the 
agent  of  the  principal  is  a  subject  of  much  conflict  of  authority.52 
It  has  been  laid  down  that  "it  is  not  generally  necessary  that  it 
should  declare  that  the  affiant  is  the  agent,  or  expressly  aver  that 
he  makes  it  in  his  behalf,"  and,  furthermore,  it  is  held  in  some 
cases  that  the  authority  of  the  agent  will  be  presumed  in  the  ab- 
sence of  evidence  to  the  contrary.53  The  rule,  however,  is  other- 
wise in  Virginia,  where  it  is  held  that  the  affiant  must  be  de- 
scribed in  the  affidavit  as  agent,  and  that  an  affidavit  made  by  a 
party  who  describes  himself  as  bookkeeper,  secretary  and  treas- 
irer,  president,  vice-president,  director,  and  the  like,  is  not  suffi- 
:ient,  as  such  terms  do  not  ex  in  termini  import  agency.64 

Time  of  Making  Affidavit.— The  affidavit  need  not  be  made  be- 
fore the  summons  in  a  chancery  suit  issues,55  but,  if  the  court 
las  jurisdiction  of  the  cause  upon  other  grounds  than  the  attach- 
ment, may  be  made  even  after  the  bill  has  been  filed,56  and, 
indeed,  may  be  made  at  any  time  before  the  abatement  of  the 
suit.57  As  the  ground  for  an  attachment  should  exist  when  the 
ttachment  is  sued  out,  the  time  between  the  making  of  the 

50.  Note  11  Anno.  Cas.  27;  20  Anno.  Cas.  576. 

51.  Code,  §§  2959,  2961,   2962,  2964,  2988. 

52.  3   Encl.  PI.   &  Pr.  9;  4  Cyc.  473. 

53.  3   Encl.  PI.  &  Pr.  9,  and  notes. 

54.  Ante,  §  91,  note  30;  Clement  v.  Adams  Bros.  Payne  Co.,  113  Va. 
— .   75    S.    E.   294. 

55.  Moore  v.  Holt,  10  Gratt.  284. 

56.  O'Brien  v.   Stephens.   11    Gratt.    610 

57.  Pulliam  v.  Aler,   15   Gratt.  54. 


696  ATTACHMENTS  §    361 

affidavit  and  the  issue  of  the  attachment  based  thereon  should 
not  be  unreasonable.  While  the  two  acts  need  not  be  simulta- 
neous, the  attachment  should  follow  the  affidavit  upon  which  it 
is  based  within  a  reasonable  time.  What  is  a  reasonable  time 
is  to  be  judged  by  the  circumstances  of  the  case  and  the  situa- 
tion of  the  parties.68 

Amendments. — In  some  of  the  States  there  are  statutes  allow- 
ing amendments  in  specific  cases,  in  others  there  are  general 
statutes  of  amendments  applicable  to  all  cases,  while  in  still 
others  there  is  no  statute  of  amendment  applicable  to  attach- 
ments or  affidavits  therefor.  There  is  no  such  statute  in  Virginia, 
and  a  number  of  other  States.  In  the  absence  of  any  statute 
providing  for  amendments,  it  is  generally  declared  that  courts 
of  general  jurisdiction  have  inherent  powers  to  allow  amend- 
ments of  mere  formal  or  clerical  defects,  but  when  we  come  to 
examine  the  cases  as  to  what  constitutes  formal  or  clerical  de- 
fects, there  is  a  great  want  of  harmony  among  the  decisions.59 
In  Virginia,  authority  is  very  scarce,  but  it  has  been  held  that, 
on  an  appeal  in  a  case  founded  on  insufficient  affidavit,  the 
Court  of  Appeals  can  only  abate  the  attachment  and  dismiss 
the  proceeding,  in  the  absence  of  application  to  amend  the  affi- 
davit in  the  trial  court,  and  that  it  will  not  remand  the  case  to  the 
trial  court  for  the  purpose  of  allowing  such  amendment,60  but 
there  is  no  specific  statute  allowing  amendments  in  the  trial 
court.  In  West  Virginia,  whose  statutes  are  very  similar  to  those 
in  Virginia,  it  has  been  held  that  an  affidavit  cannot  be  amended 
except  as  to  formal  or  clerical  defects,  and  hence  that  the 
omission  from  the  affidavit  of  the  word  "justly"  in  stating  the 
claim  of  the  plaintiff  cannot  be  cured  by  amendment;  further- 
more, that  an  amendment  stating  additional  facts  to  show  the 
existence  of 'the  ground  of  attachment  specified  in  the  first  affi- 
davit for  the  purpose  of  upholding  that  attachment  must  show 

58.  Kesler  v.  Lapham,  46  W.  Va.  293,  295,  33  S.   E.  289. 

59.  Note  31  L.   R.  A.  422  gives  a  collection  of  authorities  on  this 
subject. 

60.  Taylor  v.   Sutherlin-Meade  Co.,  107  Va.  787,  797,  60  S.   E.  132; 
Clement  v.  Adams  Bros.  Payne  Co.,  113  Va.  — ,  75  S.   E.  294. 


§   361  AFFIDAVIT          !  697 

that  such  facts  existed  at  the  date  of  the  first  affidavit.61 
But  while  such  facts  must  have  existed  at  the  time  the  first 
affidavit  was  made,  the  supplemental  affidavit  need  not  state  ex- 
pressly that  such  additional  facts  came  to  affiant's  knowledge 
after  making  the  first  affidavit.62  An  affidavit  which  fails  to 
show  that  the  affiant  was  sworn  cannot  be  amended  for  the  pur- 
pose of  showing  that  fact,63  but  a  mistake  in  the  date  of  the 
affidavit  is  a  mere  clerical  error,  which  may  be  corrected  by 
amendment.64 

An  order  endorsed  upon  an  attachment  requiring  the  gar- 
nishee  to  appear  and  answer  is  process.  It  must  be  returnable 
to  some  legal  return  day.  If  it  be  not  so  returnable,  but  skips 
a  term,  and  is  returnable  to  the  second  term  after  its  issue,  it  is 
not  simply  irregular,  but  void,  and  cannot  be  amended  as  to  the 
return  day.65 

Additional  Affidavits  or  Attachments. — There  may  be  in  the 
same  suit  or  action  more  than  one  affidavit  based  on  different 
grounds,  and  attachments  sued  out  thereon.  The  lien  of  such 
other  attachment,  however,  does  not  relate  back  to  the  first  at- 
tachment, but  takes  effect  from  its  levy  or  service,  or  as  to  real 
estate,  from  the  suing  out  of  the  attachment.  The  statute  pro- 
vides that  an  attachment  may  issue  "at  the  time  of  or  after  the 
institution  of  any  action  at  law."66  Hence  there  is  no  reason  why, 
pending  an  action,  a  new  attachment  may  not  be  sued  out  at  any 
time.67  Indeed,  in  a  proceeding  against  a  defendant  personally, 
and  after  the  appearance  of  the  defendant,  if  grounds  of  at- 
tachment exist  affidavit  may  be  made  and  attachments  sued  out 
and  levied  on  his  property.  The  proceeding  may  thus  be  both 
personal  and  in  rem  at  the  same  time.68  So,  likewise,  new  and 
additional  attachments  may  be  sued  out  from  time  to  time, 

61.  Sommers  v.  Allen,  44  W.  Va.  120,  28  S.  E.  787;  Miller  v.  Zeig- 
ler,  44  W.   Va.   484,  29   S.    E.   981. 

62.  Miller  v.   Zeigler,   44   W.   Va.   484,   29   S.    E.   981. 

63.  Cosner  v.   Smith,  36  W.  Va.  788,  15   S.   E.  977. 

64.  Anderson  v.   Kanawha  Coal  Co.,  12  W.  Va.  526. 

65.  Coda  v.  Thompson,  39   W.   Va.   67,   19   S.   E.   548. 

66.  Code,    §    2959. 

67.  Miller   r.   White,   46   W.   Va.   67,   33   S.    E.   332. 

68.  O'Brien   v.   Stephens,   11   Gratt.   610. 


698  ATTACHMENTS  §    362 

issued  upon  the  original  affidavit.    This  is  expressly  provided  for 
by  statute  in  Virginia.69 

§  362.    What  may  be  attached. 

All  estate,  real  or  personal,  of  the  defendant  may  be  attached, 
whether  the  same  be  in  the  county  or  corporation  in  which  the 
attachment  issued,  or  in  any  other,  including  incorporeal  heredit- 
aments, choses  in  action,  shares  of  stock  in  a  domestic  corpora- 
tion, and  damages  for  such  torts  as  would  on  the  death  of  the 
defendant  survive  to  his  personal  representative.70  Pecuniary 
legacies  and  distributive  shares  in  decedent's  estate  may  also  be 
attached  in  equity,71  but  not  at  law.72  Remainders,  whether 

69.  Section  2966  of  the  Code  is  as  follows:     "Upon  the  application 
of   the   plaintiff,    his    agent   or    attorney,    other    attachments    founded 
on   the   original   affidavit   may   be    issued    from   time    to   time    by    the 
clerk    of   the    court     in    which    the    original     attachment    is     pending, 
and  the  same  may  be  directed,  executed,  and  returned  in  like  man- 
ner as   an   original   attachment.     The   court    shall   adjudge   the   costs 
of  such  attachments  as  to  it  may  seem  right  and  just." 

70.  Section    2967    of   the   Code   is    as    follows:      "Every    attachment 
(except    where    it    is    sued    out    specially    against    specified    property) 
may  be  levied  on  any  estate,  real  or  personal,  or  when  it  is  against 
a    non-resident    or    an    absconding    debtor,    any    remainder,    whether 
vested   or   contingent,    of   the    defendant,    or    so    much    thereof   as    is 
sufficient  to  pay  the  amount  for  which  it  issues,  and  may  be  levied 
upon    any    estate    of    the    defendant,    whether   the    same   be    in   the 
county    or    corporation    in    which    the   attachment    issued,    or    in    any 
other,    either    by    the    officer    of   the    county    or    corporation    wherein 
the  attachment  issued,  or  by  the  officer  of  the  county  or  corporation 
where  the  estate  is;  and  when  levied  on  a  contingent  remainder,  the 
said  contingent  remainder  shall  not  be  sold  until  it  becomes  vested, 
but  the  decree  or  judgment  ascertaining  the  amount  due  the  plaintiff 
may   be   docketed   as   other   liens   are   docketed,   and   shall    be   a   lien 
only  on  the   property   levied   on.     *     *     *" 

Clause  (10),  §  5  of  the  Code,  is  as  follows:  "The  word  'land' 
or  -lands'  and  the  words  'real  estate'  shall  be  construed  to  include 
lands,  tenements,  and  hereditaments,  and  all  rights  thereto  and  in- 
terests therein,  other  than  a  chattel  interest;  and  the  words  'personal 
estate'  shall  include  chattels  real  and  such  other  estate  as,  upon  the 
death  of  the  owner  intestate,  would  devolve  upon  his  personal  rep- 
resentative." 

71.  Vance    v.    McLaughlin,    8    Gratt.    289;    Anderson    v.    Desoer,    6 
Gratt.  363;  Moores  v.  White,  3  Gratt.  139. 

72.  Whitehead  v.  Coleman,  31  Gratt.  784. 


§    362  WHAT   MAY  BE  ATTACHED  699 

vested  or  contingent,  are  also  subject  to  attachment  under  the 
Virginia  statute.73  It  is  probable  that  an  attachment  cannot  be 
levied  on  a  negotiable  note  which  is  not  due.  At  all  events,  a 
purchaser  for  value  of  such  note  without  notice  of  the  attach- 
ment would  have  priority  over  an  attachment  previously  levied.74 
Shares  of  stock  in  domestic  corporations  are  deemed  to  be  so  far 
in  the  possession  of  the  corporation  which  issued  them  that  they 
may  be  subjected  to  attachment.75  But  shares  of  stock  in  a  for- 
eign corporation  cannot  be  reached  by  process  of  attachment,  al- 
though the  officers  of  the  corporation  are  within  the  State  and 
the  business  of  the  corporation  is  being  carried  on  there.  The 
situs  of  such  stock  for  the  purpose  of  attachment  and  execution 
is  the  domicile  of  the  corporation  and  that  only.76 

Subsequent  purchasers  for  value  without  notice  of  tangible 
personal  property  take  subject  to  a  prior  attachment  and  so  of  real 
estate  if  a  Us  pcndcns  is  recorded  and  indexed,  but  otherwise 
not.77  As  assignee  for  value  and  without  notice  of  a  chose  in 
action,  not  negotiable,  takes  priority  over  an  execution,  because 
the  statute  expressly  so  provides,78  but  the  rule  is  otherwise  as 
to  a  prior  attachment.  An  attachment  duly  levied  on  a  non- 
negotiable  chose  in  action  takes  priority  over  a  subsequent  pur- 
:haser  thereof  for  value  and  without  notice  simply  because  the 
statute  makes  no  exception  and  the  lien  dates  from  the  levy. 
[f,  however,  the  chose  in  action  has  been  assigned  before  the 
ittachment  has  been  levied,  the  assignee  takes  priority  as  the 
ittaching  creditor  can  never  get  any  greater  interest  than  his 
lebtor  had  at  the  time  the  attachment  was  levied.79  An  attach- 
ing creditor  cannot  acquire  any  greater  right  to  the  attached 

73.  Code,  §  2967. 

74.  Howe  r.  Quid,  28  Gratt.  1. 

75.  C.  &  O.  R.  Co.  r.  Paine.  29  Gratt.  502;  Shenandoah  V.   R.  Co. 
->.  Griffith,  76  Va.  913;  Lipscomb  v.  Condon,  56  W.  Va.  416,  49  S.  E. 
392. 

76.  Smith  v.  Downey,  8   Ind.  App.  179,  34  N.   E.  823,  35   N.   E.  568, 
Am.  St.  Rep.  467,  and  note. 

77.  Code,  §  3566;  Vicars  v.  Sayler,  111  Va.  307,  68  S.  E.  988. 

78.  Code,  §  3601;  Evans,  Trustee  v.  Greenhow,  15  Gratt.  153. 

79.  Anderson  v.   DeSoer,  6  Gratt.  363;   B.   &  O.  v.  McCullough,   12 
Gratt.   595. 


700  ATTACHMENTS  §    363 

property  than  the  defendant  had  at  the  time  of  the  attach- 
ment.80 If  the  property  be  in  such  a  situation  that  the  defendant 
has  lost  his  power  over  it  or  has  not  yet  acquired  such  interest 
in  or  power  over  it  as  to  permit  him  to  dispose  of  it  adversely 
to  others,  it  cannot  be  attached  for  his  debt.81 

§  363.    What  may  not  be  attached. 

Some  illustrations  of  what  may  not  be  attached  were  given 
in  the  last  section.  In  addition  thereto  what  is  known  as  "the 
poor  debtor's  exemption,"  wages  of  a  laboring  man,  etc.,  are 
exempt  from  levy  of  attachment  or  execution,  and  also,  for  most 
attachments,  the  homestead.  These  exemptions,  however,  would 
probably  not  be  allowed  where  the  ground  of  attachment  is  that 
the  defendant  is  a  non-resident,  or  is  about  to  leave  the  State 
with  intent  to  change  his  domicile.  Property  in  the  custody  of 
the  law,  as  property  in  the  hands  of  a  receiver,82  or  in  the  hands 
of  an  officer,  or  levied  on  under  a  former  ft.  fa.  or  attachment 
where  bond  has  been  given  to  have  it  forthcoming  at  a  later  time 
and  place  and  before  it  is  forfeited,  and  probably  property  taken 
from  a  prisoner  are  exempt  from  attachment.83  But  in  Virginia 
the  delivery  to  an  officer  of  an  attachment  is  deemed  a  levy 
thereof  on  money  and  effects  of  the  defendant  held  under  an 
attachment  executed,  or  other  legal  process.84  '  The  authorities 
are  not  entirely  in  harmony  as  to  the  exemption  of  property  taken 
from  a  prisoner.85  Where  personal  chattels  have  been  mort- 
gaged and  left  in  the  possession  of  the  mortgagor,  there 
is  conflict  as  to  whether  they  may  be  attached.86  Prop- 
erty held  by  a  public  officer  pursuant  to  public  trust,  as  for 
instance  a  deposit  by  a  foreign  insurance  company,  cannot  be  at- 

80.  Neill  v.   Produce   Co.,   41   W.   Va.   37,   23   S.    E.   702;    Seward   &. 
Co.  v.  Miller,  106  Va.  309,  55  S.  E.  681. 

81.  Neill  v.  Produce  Co.,  supra. 

82.  Davis  v.  Bonney,  89  Va.  755,  17  S.  E.  229. 

83.  11  Am.   &  Eng.   End.  Law   (2nd   Ed.)   641;  4  Cyc.  558,   593. 

84.  Code,  §  2985. 

85.  Ex  parte    Hum,    92   Ala.    102,   9    So.    515,   25    Am.    St.    Rep.   23; 
Holker  v.  Henessey,  141  Mo.  527,  42  S.  W.  1090,  39  L.  R.  A.  165. 

86.  11  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  624,  5;  Spence  v.  Repass, 
94  Va.  716,  27  S.  E.  583,  4  Va.  Law  Reg.  255;  ante,  §  342. 


§    363  WHAT  MAY  NOT  BE  ATTACHED  701 

tached  either  before  or  after  the  company  has  discharged  all  of 
its  liabilities  to  citizens  of  the  state.87  Money,  credits  and 
property  are  in  the  custody  of  the  law  when  held  by  executors, 
administrators,  guardians  and  like  quasi  officers  in  their  repre- 
sentative and  administrative  capacity.  Neither  an  administrator, 
an  executor,  nor  a  debtor  of  the  decedent  can  be  garnished  for 
a  debt  due  by  the  decedent,  because  it  would  disturb  the  proper 
administration  of  the  estate.88  Whether  property  carried  or 
worn  by  the  defendant  which  cannot  be  taken  without  a  breach 
of  the  peace,  or  violating  the  debtor's  personal  security,  is  ex- 
empt from  levy  of  an  attachment  is  likewise  the  subject  of 
conflict.89  Whether  or  not  the  rolling  stock  of  a  railroad  can  be 
attached  is  the  subject  of  great  conflict  of  opinion.  In  some 
States  it  is  held  that  it  cannot  be  on  the  ground  that  it  is 
essential  to  the  exercise  of  the  corporate  franchise  and  a  proper 
discharge  of  the  duties  which  the  company  has  assumed  toward 
the  public.  In  others  it  cannot  be  if  the  road  is  engaged  in 
interstate  commerce,  because  it  would  be  an  interference  there- 
with. In  still  others  no  exception  has  been  made.90  In  Virginia 
there  are  no  decisions  on  the  subject  except  that  it  has  been 
held  that  empty  coal  cars  which  have  been  used  exclusively  for 
the  interstate  transportation  of  coal,  and  which  are  intended  to 
be  so  used  again,  are  not,  while  being  returned  from  one  point 
in  this  State  to  another,  engaged  in  transporting  articles  of  inter- 
state commerce,  though  en  route  to  coal  fields  outside  of  the 
State,  and  that  the  transportation  of  such  cars  is  controlled 
exclusively  by  the  law  of  this  State.91  A  comparatively  recent 
holding  of  the  Supreme  Court  of  the  United  States  will  prob- 
ably tend  to  unify  the  decisions  of  the  State  courts,  which  seem 
to  have  been  timid  about  interference  with  interstate  commerce. 
It  is  held  in  the  case  referred  to  that  cars  and  rolling  stock  of 

87.  Rollo   r.    Ins.    Co.,   23    Gratt.    509;    Buck   v.    Guarantors   Co.,   97 
Va.   719,  34   S.   E.   958. 

88.  Brewer  i:  Hutton,  45  W.  Va.  106,  30  S.  E.  81. 

89.  4  Cyc.  568,  citing  cases  to  the  effect  that  it  is   not   subject  to 
levy;  2  Tuck.   Com.  362,  stating  that  it   is   subject  to  levy 

90.  Connery  r.  R.  Co.,  92  Minn.  20,  99  N.  W.  365,  104  Am    St.  Rep. 
659,  and  note;  ante,  §  339,  and  cases  cited. 

91.  X.   &  \V.   R.  Co.  v.  Com.,  93  Va.  749,  24  S.   E.  837. 


702  ATTACHMENTS  §    364 

railroad  companies  are  not  "put  apart  in  a  kind  of  civil  sanctuary'' 
so  as  to  be  immune  from  attachment  laws  of  the  States,  and,  while 
standing  idle  on  the  tracks,  though  previously  brought  into  the 
State  loaded  with  interstate  commerce,  and  simply  awaiting  re- 
turn, are  subject  to  attachment.92  Debts  or  liabilities  to  become 
due  upon  a  contingency  which  may  never  happen  (for  instance, 
liability  on  a  life  insurance  policy  which  may  never  accrue  in 
consequence  of  failure  to  pay  premiums)  are  not  the  subject  of 
garnishment.  Where  the  contract  between  parties  is  of  such 
nature  that  it  is  uncertain  or  contingent  whether  anything  will 
ever  be  due  by  virtue  of  it,  it  does  not  give  rise  to  such  a  credit 
as  may  be  attached,  for  that  cannot  properly  be  called  a  debt 
which  is  not  certainly  and  at  all  events  payable  either  at  the 
present  or  some  future  period.  To  be  the  subject  of  attachment, 
the  debt  or  liability  must  be  due  or  be  certain  to  become  due  at 
a  future  period.93 

§  364.    How  and  by  whom  property  is  attached. 

Property  is  attached  by  making  some  sort  of  levy  of  the  at- 
tachment thereon,  but  the  methods  of  making  the  levy  vary 
according  to  the  circumstances  of  the  case. 

Tangible  Personal  Property. — The  statute  provides  that  it  shall 
be  sufficiently  levied  if  sued  out  against  specified  property  by 
serving  the  attachment  on  the  defendant  or  other  person  having 
possession  of  such  property;  in  every  other  case  by  serving  the 
attachment  on  such  persons  as  may  be  designated  by  the  plaintiff 
as  aforesaid,  and  where  the  defendant  is  in  possession,  by  serv- 
ice of  the  attachment  on  him.94  If,  therefore,  the  attachment  be 

92.  Davis  v.  Cleveland  R.  Co.,  217  U.   S.   157. 

93.  Boisseau  v.  Bass,  100  Va.  207,  211,  40  S.  E.  647. 

94.  Code,  §  2967,  as  amended,  is  as  follows:     "*    *          The  plaintiff, 
his   agent   or   attorney   may,   by   an   endorsement   on   the   attachment 
at  the  time  it  is  issued,  or  in  writing  at  any  time  before  the  return 
day   thereof,   designate   any  person   as   being  indebted   to,   or   having 
in  his  possession  effects  of,  the  defendant  or  one  of  the  defendants; 
and   in   such   case   the   officer   issuing  the   attachment    shall    make   as 
many    copies    thereof   as   there   are    persons    designated,    with    an    in- 
dorsement  on   each   copy  that   the  person   so   designated   is   required 
to  appear  at  the  term   of  the   court   to  which   the   attachment  is   re- 


§    364  HOW  AND  BY  WHOM  PROPERTY  IS  ATTACHED  703 

sued  out  against  specified  property,  it  may  be  levied  by  simply 
serving  the  attachment  on  the  defendant  or  other  person  having 
possession  of  the  property.  If  not  sued  out  against  specified 
property,  but  for  debt  or  damages,  and  is  to  be  levied  on 
tangible  property,  and  any  person  has  been  designated  as  having 
such  property  in  his  possession,  the  attachment  may  be  served 
by  delivering  a  copy  thereof  to  the  defendant  or  other  person  in 
possession  thereof.  The  designation  of  the  person  in  possession 
may  be  made  either  at  the  time  the  attachment  is  issued,  or  in 
writing  by  the  plaintiff  at  any  time  before  the  return  day.  If 
the  property  is  not  in  the  possession  of  any  one,  but  simply  in 
the  constructive  possession  of  the  attachment  debtor,  it  may  be 
levied  on  as  an  execution  would  be  levied,  that  is,  by  having  the 
property  in  the  view  and  power  of  the  officer,  announcing  the 
levy  and  endorsing  the  levy  on  the  attachment.95  Whether  the 
provisions  of  the  statute  for  levying  an  attachment  are  cumulative 
merely  and  would  still  permit  a  common  law  levy,  or  are  ex- 
clusive, has  not  been  determined,  but  as  the  statute  does  not 
exclude  the  common  law  levy,  but  simply  declares  that  the  attach- 
ment shall  be  sufficiently  levied  by  following  the  statutory  re- 
turnable, if  the  same  be  returnable  to  a  term,  or  the  first  term  of  the 
court  next  after  the  return  day  of  the  attachment,  if  the  same  be 
returnable  to  a  rule  day  thereof,  and  disclose  on  oath  in  what  sum  he  is 
indebted  to  the  defendant,  and  what  effects  of  the  defendant  he  has  in  his 
hands.  It  shall  be  sufficiently  levied,  if  sued  out  against  specified  property, 
by  serving  the  attachment  on  the  defendant,  or  other  person  having 
possession  of  such  property;  in  every  other  case,  by  serving  the  at- 
tachment on  such  person  as  may  be  designated  by  the  plaintiff  as 
aforesaid;  and,  where  the  defendant  is  in  possession,  by  service  of 
the  attachment  on  him;  and  as  to  real  estate,  by  such  estate  being 
mentioned  and  described  in  axi  endorsement  on  such  attachment, 
made  by  the  officer  to  whom  it  is  delivered  for  service,  to  the  fol- 
lowing effect: 

"  'Levied  on  the  following  real  estate  of  the  defendant  A.  B.  (or  A. 

B.  and  C.   D.),  to-wit:      (Here   describe  the   estate),  this   the  

day  of .  E.  F.,  Sheriff  (or  other  officer).' 

and  by  service  of  the  attachment  on  the  person,  if  any,  in  posses- 
sion of  such  estate.  The  attachment  in  every  case  may  be  served  as 
a  notice  is  required  to  be  served  by  section  thirty-two  hundfed  and  seven." 

95.  Dorrier  v.  Masters,  83  Va.  459,  2  S.  E.  927;  Poling  v.  Flanagan, 
41  W.  Va.  191,  23  S.  E.  685. 


704  ATTACHMENTS  §    364 

quirement,  it  would  seem  to  indicate  that  the  common  law 
method  may  still  be  pursued.  If  it  may  be,  and  there  is  personal 
property  in  the  hands  of  a  third  person  which  has  not  been 
"designated,"  levy  thereon  might  be  as  at  common  law.  It 
must  be  borne  in  mind,  however,  that  in  levying  an  attachment, 
the  officer  is  not  required  to  take  possession  thereof  unless  the 
plaintiff  has  given  bond,  but  the  bond  is  not  at  all  essential  to 
the  validity  of  the  levy.  It  is  doubtful  if  the  officer  has  authority 
to  take  possession  unless  such  bond  has  been  given.96  Except 
where  the  levy  is  a  common  law  levy  on  personal  chattels,  the 
property  need  not  be  in  the  view  and  power  of  the  officer  mak- 
ing the  levy. 

Chases  in  Action. — The  statute  provides  that  the  plaintiff,  his 
agent  or  attorney,  may,  by  endorsement  on  an  attachment  when 
it  is  issued,  or  in  writing  at  any  time  before  the  return  day 
thereof,  designate  any  person  as  being  indebted  to  or  having  in 
his  possession  effects  of  the  defendant,  or  one  of  the  defendants, 
and  in  such  case  the  officer  issuing  the  attachment  is  required 
to  make  as  many  copies  thereof  as  there  are  persons  designated, 
with  an  endorsement  on  each  copy  that  the  person  so  designated 
is  required  to  appear  at  the  term  of  the  court  to  which  the  attach- 
ment is  returnable,  and  disclose  on  oath  in  what  sum  he  is  in- 
debted to  the  defendant  and  what  effects  of  the  defendant  he  has 
in  his  hands.97  The  order  endorsed  on  the  attachment  requir- 
ing the  garnishee  to  appear  is  process  and  must  be  returnable  to 
the  next  term.  If  a  term  is  skipped,  it  is  void,  and  the  process 
cannot  in  this  respect  be  amended.98  When  the  garnishee  ap- 
pears he  is  to  be  examined  on  oath.  If  he  discloses  property 
or  indebtedness  which  is  liable  to  the  attachment,  the  court  may 
order  him  to  pay  the  amount  owing,  or  to  deliver  the  effects 
to  such  person  as  it  may  appoint  as  receiver,  or  the  garnishee 
may,  with  leave  of  the  court,  give  bond  with  sufficient  surety 
with  condition  to  pay  the  amount  owing  by  him,  and  have  such 
effects  forthcoming  at  such  time  and  place  as  the  court  may 

96.  Kenefick  v.  Caulfield,  88  Va.  122,  13  S.  E.  348.     See  also,  Moore 
v.   Holt,  10  Gratt.  284. 

97.  Code,   §  2967. 

98.  Coda  v.  Thompson,   39   W.   Va.   67,   19   S.   E.   548. 


§    364  HOW   AND   BY    WHOM    PROPERTY    IS   ATTACHED  705 

thereafter  require,  but  the  judgment  debtor  may  claim  the  prop- 
erty as  exempt  to  him,  and  if  it  is  so  determined  the  court  will 
have  it  set  apart."  If  the  garnishee  do  not  appear,  the  court 
may  either  compel  him  to  appear,  or  hear  proof  of  any  debt 
owing  by  him  or  effects  in  his  hands,  and  give  judgment  as  if 
what  was  so  proved  had  appeared  on  his  examination.1  If  it 
is  suggested  by  the  plaintiff  that  the  garnishee  has  not  fully 
disclosed  the  debts  owing  by  him  or  effects  in  his  hands,  the 
court  without  any  formal  pleadings  is  required  to  inquire  into 
the  matter,  and  proceed  in  respect  to  any  debt  or  effects  found 
in  the  same  manner  .as  if  it  had  been  confessed  by  the  garnishee.2 

99.  Section  2976  of  the  Code  is  as  follows:  "When  any  garnishee 
shall  appear,  he  shall  be  examined  on  oath.  If  it  appear,  on  such 
examination,  or  by  his  answer  to  a  bill  in  equity,  that  at  the  time 
of  the  service  of  the  attachment  he  was  indebted  to  the  defendant 
against  whom  the  claim  is,  or  had  in  his  possession  or  control  any 
goods,  chattels,  money,  securities,  or  other  effects  belonging  to  the 
said  defendant,  the  court  may  order  him  to  pay  the  amount  so  ow- 
ing by  him,  and  to  deliver  such  effects  to  such  person  as  it  may 
appoint  as  receiver;  or  such  garnishee,  with  the  leave  of  the  court, 
may  give  bond,  with  sufficient  surety,  payable  to  such  person,  and 
in  such  penalty  as  the  court  shall  prescribe,  with  condition  to  pay 
the  amount  owing  by  him,  and  have  such  effects  forthcoming,  at 
such  time  and  place  as  the  court  may  thereafter  require,  but  the 
judgment  debtor,  if  a  householder  or  head  of  a  family,  may  claim 
that  the  amount  so  found  owing  from  the  garnishee  shall  be  ex- 
empt from  the  payment  of  the  debt  to  the  judgment  creditor;  and 
if  it  shall  appear  that  the  said  judgment  debtor  has  not  set  apart 
and  held  as  exempt  in  other  estate  the  amount  of  exemption  to 
which  he  is  entitled,  then  the  court  shall  render  a  judgment  against 
the  garnishee  only  for  the  excess,  if  any,  beyond  the  exemption  to 
which  the  judgment  debtor  is  entitled." 

1.  Section    2977    of    the   Code    is    as    follows:     "If   any  garnishee 
summoned  as  aforesaid,  fail  to  appear  in  an  attachment  at  law,  the 
court  may  either  compel  him  to  appear,   or  hear  proof  of  any  debt 
owing  by  him,   or  of  effects  in  his  hands   belonging  to   the   defend- 
ant  in    such    attachment,    and   make    such    orders    in    relation   thereto 
as  if  what  is  so  proved  had  appeared  on  his  examination." 

2.  Section  2978  of  the  Code  is  as  follows:     "When  it  is  suggested 
by   the   plaintiff   in    any   attachment    at   law,    that    the    garnishee    has 
not  fully  disclosed  the  debts  owing  by  him,  or  effects  in  his  hands 
belonging  to   the   defendant   in    such   attachment,   the   court,   without 

—45 


706  ATTACHMENTS  §    364 

The  mere  fact  that  an  attachment  is  placed  in  the  hands  of  an 
officer  to  be  executed  (unlike  an  execution)  creates  no  lien. 
The  lien  is  created  by  the  levy  or  service  of  the  copy,  and  hence 
before  that  time  the  debtor  may  assign  a  debt  due  to  him,  or 
his  creditor  may  pay  him,  and  each  will  be  good.  So,  too,  when 
the  garnishee  answers,  he  answers  as  to  what  effects  he  had  in 
his  hands  belonging  to  the  debtor,  or  in  what  sum  he  was  in- 
debted to  the  attachment  debtor  "at  the  time  of  the  service  of 
the  attachment,"  and  the  attachment  fastens  only  on  that,  and 
not  on  a  subsequent  indebtedness,  nor  upon  other  property  that 
may  have  come  into  the  hands  of  the  garnishee  at  any  time  sub- 
sequent to  the  time  of  service.  Indebtedness  arising  after  the 
time  of  the  service  of  the  attachment,  or  property  coming  into 
the  hands  of  the  garnishee  after  that  time,  is  not  liable  to  the 
lien  of  the  attachment.  In  some  jurisdictions  it  is  held  that 
municipal  corporations  are  not  liable  to  garnishment  or  attach- 
ment for  debts  due  to  third  persons,  and  this  is  probably  according 
to  the  weight  of  authority.3  But  it  has  been  held  in  Virginia 
that  a  municipal  corporation  may  be  garnished  or  attached  for  a 
debt  due  to  one  of  its  creditors  just  as  a  natural  person  may  be,4 
and  provision  is  now  made  by  statute  for  the  garnishment  of 
debts  due  by  the  State,  counties,  towns,  etc.5 

Real  Property, — By  statute  in  Virginia  it  is  provided  that  real 
property  may  be  levied  on  by  being  mentioned  and  described  in 
an  endorsement  on  the  attachment  signed  by  the  officer  making 
the  levy,  and  by  delivering  a  copy  of  the  attachment  to  the  per- 
son, if  any,  in  possession.  There  must  be  both.  The  form  of 
the  levy  is  prescribed  by  statute.6  It  has  been  held  that  the 

any  formal  pleading,  shall  inquire  as  to  such  debts  and  effects,  or, 
if  either  party  demand  it,  shall  cause  a  jury  to  be  impaneled  for 
that  purpose,  and  proceed  in  respect  to  any  such  found  by  the 
court  or  the  jury,  in  the  same  manner  as  if  they  had  been  confessed 
by  the  garnishee.  If  the  judgment  of  the  court  or  verdict  of  the 
jury  be  in  favor  of  the  garnishee,  he  shall  have  judgment  for  his 
costs  against  the  plaintiff." 

3.  Leake  v.  Lacey,  95   Ga.  747,  22  S.   E.  655,  51  Am.   St.   Rep.   112, 
and  note. 

4.  Portsmouth   Gas  Co.  v.  Sanford,  97  Va.  124,  33  S.  E.  516. 

5.  Code,  §§   3652   (d),  3652   (e),   3652   (f). 

6.  Code,  §  2967. 


§    364  HOW   AND   BY    WHOM    PROPERTY    IS   ATTACHED  707 

description  of  the  property  must  be  given  by  the  officer  in  his 
levy,  and  must  be  such  as  may  be  easily  identified  by  looking 
alone  to  the  levy  without  the  aid  of  extrinsic  evidence,7  and  that 
the  return  must  show  that  the  land  was  levied  on  as  the  land  of 
the  debtor  defendant.8  But  when  a  map,  plan,  survey  or  deed 
is  referred  to  in  the  levy  for  a  description  of  the  land,  it  is  not 
to  be  regarded  as  extrinsic  evidence,  but  part  of  the  return  itself, 
so  when  the  return  on  an  attachment  describes  the  land  by  re- 
ferring to  it  as  conveyed  to  the  attachment  debtor  by  a  designated 
person  by  a  deed  recorded  in  a  designated  deed  book  at  a  certain 
page,  this  identifies  the  land  with  sufficient  certainty,  for  the 
purposes  of  both  sale  and  conveyance  without  the  aid  of  extrinsic 
evidence,  and  is  a  substantial  if  not  a  literal  compliance  with  the 
statute. !)  When  the  attachment  is  against  a  non-resident  or  ab- 
sconding debtor  "any  remainder,  whether  vested  or  contingent, 
of  the  defendant,  or  so  much  thereof  as  is  sufficient  to  pay  the 
amount  for  which  it  issued,"  may  be  levied  on,  but  a  contingent 
remainder  so  levied  on  cannot  be  sold  until  it  becomes  vested.10 
Where  the  attachment  against  a  non-resident  is  the  sole  basis  of 
the  equity  jurisdiction,  the  levy  of  the  attachment,  as  shown  by 
the  officer's  return,  on  the  non-resident  defendant's  property,  is 
the  foundation  of  the  suit,  and  if  the  property  attached  be  not 
the  defendant's  property,  the  court  is  without  jurisdiction.11 

By  Whom  Service  May  Be  Made. — An  attachment  may  be 
directed  to  the  sheriff,  sergeant,  or  constable  of  any  county  or 
corporation.12  When  directed  to  the  officer  of  the  county  or 
corporation  in  which  the  attachment  is  sued  out,  it  may  be 

7.  Raub  v.  Otterback,  92  Va.  517,  23  S.  E.  883. 

8.  Robertson  v.  Hoge,  83  Va.  124,  1  S.  E.  667. 

9.  Richardson  v.   Hoskins  Lumber  Co.,   Ill  Va.   755,  69   S.    E.   935; 
Duty  v.   Sprinkle,  64   W.   Va.  39,   60  S.   E.   882. 

10.  Code,  §  2967.  The  fact  that  a  debtor  absconds  is  not  given  as 
one  of  the  grounds  of  attachment  in  Virginia,  and  this  is  the  only 
section  in  the  chapter  on  attachments  that  mentions  "absconding" 
debtors.  The  fact  that  he  absconds,  however,  may  furnish  a  basis 
for  one  of  the  other  grounds  of  attachment  mentioned  in  §  2959. 

11.  Culbertson  v.   Stevens,   82   Va.   406,   4   S.    E.   607;    Robertson   v. 
Hoge,   83   Va.   124,   1   S.   E.   667. 

12.  Code,  §  2965. 


708  ATTACHMENTS  §    365 

served  by  him  anywhere  in  the  State,  but  when  directed  to  the 
officer  of  any  other  county  or  corporation  it  can  be  served 
by  him  only  within  his  bailiwick.  For  instance,  if  an  attachment 
be  sued  out  from  the  Circuit  Court  of  Rockbridge  County,  and  be 
directed  to  the  sheriff  of  said  county,  he  may  serve  it  anywhere 
in  the  State,  but  if  issued  from  the  Circuit  Court  of  Rockbridge 
County,  and  directed  to  the  sheriff  of  Augusta  County,  the  latter 
can  serve  it  only  in  Augusta  County.13  The  officer  levying  the 
attachment  is  required  in  Virginia  to  show  in  his  return  the  date 
and  manner  of  service,  or  execution  thereof,  on  each  person 
and  parcel  of  property,  and  also  to  give  a  list  and  description  of 
the  property,  if  any,  taken  under  the  attachment.14  The  attach- 
ment may  be  issued  or  executed  on  Sunday,  if  oath  be  made 
that  the  defendant  is  actually  removing  his  effects  on  that  day.15 

§  365.    Attachment  bonds. 

An  officer  charged  with  the  levying  of  an  attachment  is  not 
required  to  take  possession  of  the  effects  of  the  debtor,  unless 
a  bond  is  given  with  surety,  approved  by  the  justice  or  clerk 
issuing  the  attachment,  in  a  penalty  at  least  double  the  amount 
of  the  claim  sworn  to  or  sued  for.  Indeed,  it  is  doubtful  if  he 
is  authorized  to  take  possession  unless  such  bond  is  given.16 
This  bond  may  be  given  by  any  one,17  is  payable  to  the  common- 
wealth'of  Virginia,  or  to  the  person  entitled  to  the  benefit 
thereof,18  and  is  with  condition  to  pay  all  costs  and  damages 
which  may  be  awarded  against  the  plaintiff,  or  sustained  by  any 
person  by  reason  of  the  suing  out  of  the  attachment.19  The 
bond  may  be  given  by  one  partner  on  behalf  of  the  firm,  but 
should  bind  the  obligor  for  failure  of  the  firm  to  prosecute 
their  attachment  with  success.20  The  phrase  "any  other  person" 

13.  Code,    §§    2965,    2967. 

14.  Code,   §  2969. 

15.  Code,    §   2970. 

16.  Code,  §   2968;   Kenefick  v.   Caulfield,  88   Va.   122,   13   S     E.  348; 
Cosner  v.  Smith,  36  W.   Va.  788,  15  S.   E.  977. 

17.  Code,   §   2990. 

18.  Code,  §§  177,  181. 

19.  Code,   §   2968. 

20.  McCluny  v.  Jackson,  6  Gratt.  96. 


§    365  ATTACHMENT   BONDS  709 

used  in  the  statute21  includes  the  defendant  in  the  attachment, 
and  the  defendant  may  maintain  an  action  not  only  to  recover 
damages  awarded  against  the  plaintiff  in  the  attachment,  but 
also  other  damages  sustained  by  him  by  reason  of  the  attachment 
having  been  sued  out  without  sufficient  cause.22  But  if  the  at- 
tachment is  sued  out  against  the  defendant's  property  generally, 
and  not  against  specific  property,  and  it  is  improperly  levied 
by  the  officer  on  the  property  of  a  stranger,  such  stranger  can 
maintain  no  action  therefor  on  the  attachment  bond.  The  bond 
"covers  no  damages  for  taking  property  which  the  attachment 
does  not  command  to  be  taken.  Such  damages  are  not  sustained 
by  reason  of  suing  out  the  attachment ;  but  are  sustained  by  rea- 
son of  an  unauthorized  act  of  the  officer.  The  undertaking  of 
the  obligors  is,  that  the  attachment  is  properly  sued  out,  and 
the  claim  of  the  plaintiff  well  founded.  They  do  not  undertake 
that  the  officer  will  commit  no  trespass  in  its  execution.  They 
do  not  authorize  him  to  levy  it  on  any  property  which  he  may 
think  proper,  or  the  plaintiff  may  direct  him  to  levy  it  on.  A 
person  may  be  willing  to  become  security  in  an  attachment  bond, 
knowing  the  debt  to  be  due,  and  that  the  debtor  is  a  non-resident 
or  absconding  debtor,  but  very  unwilling  to  become  security 
that  the  officer  will  do  no  wrongful  acts  under  color  of  the  at- 
tachment. The  bond  was  not  intended  to  enlarge  the  attachment, 
but  to  run  on  all  fours  with  it.  The  attachment  may  be  against 
the  defendant's  estate,  or  against  specific  property.  If  it  be 
against  the  defendant's  estate,  the  bond  applies  only  to  that 
estate,  and  enures  to  the  benefit  of  the  defendant  only.  If  it  be 
against  specific  property,  the  bond  applies  to  the  owner  of  that 
property,  whoever  he  may  be,  whether  the  defendant  or  any 
other  person,  and  enures  only  to  the  benefit  of  such  owner."23 

The  adverse  claimant  of  property  seized  under  an  attachment 
has  ample  remedies  without  giving  him  the  benefit  of  an  in- 
demnifying bond.  Besides  a  summary  remedy  by  interpleader, 
which  is  generally  sufficient,  he  may  resort  for  his  indemnity  to 
an  action  of  trespass  against  the  sheriff  who  made  the  levy, 

21.  Code,  §  2968. 

22.  Offterdinger  v.   Ford,   92  Va.   636,   24   S.   E.  246. 

23.  Davis  v.  Com.,   13   Gratt.   139,   145,   146. 


710  ATTACHMENTS  §    365 

and  all  persons  who  aided  in  making  it,  or  directed  it  to  be 
made ;  or  to  an  action  on  the  official  bond  of  the  sheriff.24  Specific 
remedy  is  also  given  such  claimant  in  the  attachment  proceeding.25 
Where  an  attachment  is  rightfully  sued  out  with  good  cause,  but 
is  afterwards  quashed  or  abated  for  the  failure  of  the  officer  to 
do  his  duty,  no  action  lies  on  the  attachment  bond  for  the 
wrongful  acts  of  the  officer.20  In  West  Virginia,  the  scope  of 
the  condition  of  the  bond  is  enlarged  by  the  further  condition 
that  the  obligors  are  "to  pay  to  any  claimant  of  any  property 
seized  or  sold,  under  or  by  virtue  of  said  attachment,  all  dam- 
ages which  he  may  recover  in  consequence  of  such  seizure  or 
sale,  and  also  to  warrant  and  defend  to  any  purchaser  of  the 
property  such  estate  or  interest  therein  as  is  sold."27 

If  the  defendant  against  whom  the  claim  is  desires  to  retain 
property  which  has  been  levied  on  by  an  attachment,  he  may  do 
so  by  giving  bond  with  condition  to  have  the  property  forth- 
coming at  such  time  and  place  as  the  court  may  require,  or  he 
may  give  bond  with  condition  to  perform  the.  judgment  or  decree 
of  the  court,  in  which  event  the  whole  of  the  estate  attached  is  to 
be  released  to  him.28  Even  if  the  bond  given  by  the  defendant 
be  with  condition  to  perform  the  judgment  of  the  court,  the 
giving  of  such  bond  by  the  defendant  is  not  a  general  appear- 
ance, and  does  not  warrant  a  personal  judgment  against  the 

24.  Davis  v.  Com.,   13   Gratt.   139. 

25.  Code,  §   2984. 

26.  Offterdinger  v.   Ford,  92   Va.  636,  24  S.   E.  246. 

27.  W.    Va.    Code,   §   3541. 

28.  Code,  §  2972,  is  as  follows:  "Any  property  levied  on  or  seized 
as    aforesaid,   under    any    attachment,    where    the    plaintiff   has    given 
bond,  may  be  retained  by  or   returned  to  the  person  in  v/hose  pos- 
session it  was,  on  his  giving  bond,  with  condition  to  have  the  same 
forthcoming  at    such   time   and   place    as   the    court    may    require;    or 
the  defendant  against  whom  the  claim  is,  may,  by  giving  bond  with 
condition   to   perform   the  judgment   or   decree   of  the   court,    release 
from  any  attachment  the  whole  of  the   estate   attached.     The   bond, 
in  either  case,  shall  be  taken  by  the  officer  serving  the  attachment, 
with  surety,  payable  to  the  plaintiff,  and  in  a  penalty,  in  the   latter 
case,  at  least  double  the  amount  or  value  for  which  the  attachment 
issued,    and    in    the    former,    either    double    the    same    or    double    the 
value    of    the    property    retained    or    returned,    at    the    option    of    the 
person  giving  it." 


§    365  ATTACHMENT    BONDS  711 

defendant.29  The  bond  is  required  to  be  returned  to  the  clerk 
of  the  court  in  which  the  suit  is  pending,  or  to  which  the  attach- 
ment is  returnable,  and  is  subject  to  exceptions  by  the  plaintiff 
for  insufficiency  of  the  surety  or  other  good  cause.  If  the  ex- 
ception is  sustained,  the  -officer  is  required  to  file  a  good  bond, 
and  if  he  fails  to  do  so,  he  and  his  sureties  on  his  official  bond 
are  made  responsible.30  Although  the  property  or  estate  at- 
tached be  not  replevied  as  aforesaid,  the  interests  and  profits 
thereof  pending  the  suit  and  before  judgment  or  decree,  may 
be  paid  to  the  defendant  if  the  court  deem  it  proper,  and  the 
court,  or  judge  in  vacation,  may  discharge  the  attachment  on  the 
defendant  giving  bond  with  surety,  payable  to  the  plaintiff,  in 
a  penalty  double  the  value  of  such  estate,  with  condition,  if  the 
judgment  or  decree  be  rendered  for  'the  plaintiff  in  said  suit, 
to  pay  the  said  value,  or  so  much  thereof  as  may  be  necessary 
to  satisfy  the  same.31  The  property  levied  on  and  not  replevied 
is  kept  in  the  same  manner  as  similar  property  under  execution, 
but  such  as  is  expensive  to  keep  or  perishable  may  be  sold  as 
under  an  execution,  except  that  the  court  may  direct  a  sale  on 
credit,  when  the  attachment  debt  is  not  due,  or  the  court  or 
judge  sees  other  reason  therefor.32 

Although  the  claim  of  the  plaintiff  be  established,  and  judg- 
ment or  decree  be  rendered  for  him,  and  there  be  an  order  for 
the  sale  of  any  effects  or  real  estate  of  the  attachment  debtor 
to  pay  the  judgment  or  decree,  it  is  provided  by  statute  that  if 
the  defendant  against  whom  the  claim  is,  has  not  appeared  or 
been  served  with  a  copy  of  the  attachment  sixty  days  before  such 
judgment  or  decree,  the  plaintiff  shall  not  have  the  benefit  of 
the  judgment  establishing  his  demand  and  ordering  the  sale,  un- 
less and  until  he  shall  have  given  bond  with  sufficient  surety 
in  such  penalty  as  the  court  shall  approve,  with  condition  to 
perform  such  further  order  as  may  be  made  upon  the  appear- 
ance of  said  defendant  and  his  making  defence,  and  if  the  plain- 
tiff fails  to  give  such  bond  in  a  reasonable  time,  the  court  is 

29.  Hilton  v.  Consumers'  Can  Co.,  103  Va.  255,  48  S.  E.  899. 

30.  Code,  §  2973. 

31.  Code,  §  2974. 

32.  Code,   §  2975. 


712  ATTACHMENTS  §    366 

directed  to  dispose  of  the  estate  attached,  or  the  proceeds 
thereof,  as  to  it  shall  seem  just.33  If  a  copy  of  the  attachment 
has  been  served  on  the  defendant  sixty  days  before  a  decree 
for  the  sale  of  the  land  attached,  a  sale  may  be  made  without 
requiring  the  bond  last  above  mentioned.34  This  bond  seems 
to  be  additional  to  the  bond  given  requiring  the  officer  to  take 
possession  of  the  attached  effects.  The  statute  providing  for 
this  bond  says  nothing  about  the  first  bond,  and  the  con- 
ditions of  the  two  bonds  are  entirely  different. 

§  366.    Lien  of  attachment. 

The  lien  of  an  attachment  is  created  by  the  levy  (and  not  by 
delivering  the  attachment  to  the  officer  to  be  executed),  and  the 
subsequent  judgment  or  decree  is  simply  the  enforcement  of  a 
pre-existing  valid  lien.35  It  is  provided  by  statute  that  the  plain- 
tiff shall  have  a  lien  from  the  time  of  levying  such  attachment, 
or  serving  a  copy  thereof  as  aforesaid  on  personal  property ; 
and  on  real  estate,  from  the  suing  out  of  the  same,  provided  the 
attachment  is  duly  levied  as  required  by  law.36 

Real  Estate. — The  lien  of  an  attachment  on  real  estate  dates 
from  the  suing  out  of  the  attachment  or  summons,  although  the 
endorsement  of  the  attachment  on  the  writ  is  not  made  until 
after  that  time.  In  order  to  have  this  effect,  however,  as  against 
purchasers  (but  not  as  against  any  one  else),  it  is  provided  that 
the  attachment  shall  not  bind  or  affect  a  bona  fide  purchaser  of 
real  estate  for  valuable  consideration  without  actual  notice  of 
the  attachment,  unless  and  until  a  memorandum  of  the  attach- 
ment shall  be  recorded  in  the  county  or  corporation  in  which 
the  land  is  situated.37  The  language  of  the  statute  is  that  such 

33.  Code,  §  2983. 

34.  Anderson  v.  Johnson,  32  Gratt.  558. 

35.  Jackson  v.  Valley  Tie  Co.,  108  Va.  714,  62  S.   E.  964. 

36.  Code,   §   2971. 

37.  Code,    §    3566,   is   as   follows:     "No   lis   pendens,   or   attachment 
under    chapter    one    hundred    and    forty-one,    shall    bind    or    affect    a 
bona  fide  purchaser  of  real  estate,   for  valuable  consideration,   with- 
out actual  notice  of  such  lis  pendens  or  attachment,  unless  and  until 
a  memorandum  setting  forth  the  title  of  the  cause,  the  general   ob- 
ject thereof,  the   court  in   which   it   is  pending,   a   description   of  the 


§    366  LIEN   OF   ATTACHMENT  713 

memorandum  shall  be  left  with  the  clerk  of  the  court  of  the 
county  or  corporation  in  which  the  land  is  situate,  who  shall 
forthwith  record  the  same  in  the  deed  book,  and  index  it  in  the 
name  of  the  person  whose  estate  is  intended  to  be  affected 
thereby.  Under  this  language  it  would  seem,  by  analogy  to 
deeds,  that  if  the  creditor  had  done  all  that  could  be  required  of 
him,  and  had  left  the  memorandum  with  the  clerk  for  record, 
and  the  same  should  be  lost  or  destroyed  before  it  was  actually 
recorded  and  indexed,  the  creditor  would  be  protected,38 
but  it  has  been  held  in  Virginia  that  the  memorandum  must  be  re- 
corded and  indexed,  and  even  if  recorded  it  is  of  no  avail  unless 
properly  indexed.39 

Personal  Property. — As  ta  personal  property  of  all  kinds,  the 
lien  of  the  attachment  dates  from  the  time  of  levying  the  attach- 
ment or  serving  a  copy  thereof.  This  lien  overrides  and  takes 
priority  over  all  subsequent  alienations  with  or  without  notice, 
except  probably  a  holder  for  value  in  due  course  of  negotiable 
paper.  An  assignee  for  value  and  without  notice,  as  has  been 
seen,  takes  preference  over  an  execution,  and  a  payment  by  a 
debtor  of  an  execution  debtor  is  protected,  if  without  notice  of 
the  existence  of  the  execution,40  but  in  neither  case  is  this  true 
of  an  attachment,  nor  is  it  necessary  to  make  any  record  of  the 
attachment  in  order  to  preserve  this  lien  as  to  personal  prop- 
erty.41 The  lien  of  a  prior  fi.  fa.,  or  an  assignment  before  levy 
of  an  attachment,  would  be  superior  to  the  attachment.42  But 
the  service  of  an  attachment  inhibits  thereafter  the  transfer  of 

land,  and  the  name  of  the  person  whose  estate  is  intended  to  be 
affected  thereby,  shall  be  left  with  the  clerk  of  the  court  of  the 
county  or  corporation  in  which  the  land  is  situate,  who  shall  forth- 
with record  the  said  memorandum  in  the  deed  book,  and  index  the 
same  in  the  name  of  the  person  aforesaid." 

38.  Mercantile  Co-Op.  Bank  v.  Brown,  96  Va.  614,  32  S.  E.  64. 

39.  Vicars  v.  Sayler,  111  Va.  307,  68  S.  E.  988.     See  also,  Cammack 
v.  Soran,  30  Gratt.  292. 

40.  Ante,  §  352. 

41.  Ches.   &  O.   R.  Co.  v.  Payne,  29   Gratt.   at  p.  509;   Shenandoah 
V.  R.  Co.  v.  Griffith,  76  Va.  at  pp.  922-3. 

42.  Anderson   v.    DeSoer,   6   Gratt.    363;    Seward   &   Co.   v.    Miller, 
106  Va.  309,  55   S.   E.  681. 


714  ATTACHMENTS  §    366 

the  debtor's  effects  to  any  other  person.43  The  attachment,  how- 
ever, only  operates  as  a  lien  upon  the  debts  and  effects  of  the 
absent  debtor  in  the  hands  of  the  home  defendant  at  the  time 
the  attachment  was  served,  and  does  not  operate  upon  debts 
and  effects  which  thereafter  come  into  the  hands  of  such  de- 
fendant.44 

Priorities. — As  between  attachments,  the  first  served  has  pri- 
ority,45 and  the  lien  of  a  fi.  fa.  placed  in  the  hands  of  the  officer 
to  be  executed  has  priority  over  an  attachment  of  subsequent 
date.46  Where  goods  and  chattels  had  been  duly  mortgaged  in 
the  State  in  which  they  were  located,  it  was  held  that,  as  the 
deed  was  not  recorded  in  this  State,  an  attachment  levied  thereon, 
as  the  goods  of  the  mortgagor,  took  priority  over  the  deed.47 
This,  however,  was  a  decision  by  the  "military  court  of  appeals," 
whose  decisions  have  never  been  recognized  as  decisions  of  the 
Court  of  Appeals  of  Virginia.  Subsequently  the  same  question 
came  before  the  Court  of  Appeals  of  Virginia,  and  the  holding  was 
just  the  reverse,48  and  it  was  held  that  the  goods  having  been 
duly  mortgaged  in  a  foreign  State,  and  temporarily  brought  into 
the  State  of  Virginia,  the  mortgage  creditor  would  prevail,  al- 
though the  deed  was  not  recorded.  It  was  conceded  that  there 
were  opposing  decisions,  but  it  was  said  that  the  holding  was 
in  accord  with  the  weight  of  authority  in  the  best  considered 
cases.  The  decision  in  the  last  mentioned  case  led  to  the  enact- 
ment by  the  legislature  of  a  statute  declaring  that  foreign  mort- 
gages or  incumbrances  upon  personal  property  should  not  be  a 
valid  incumbrance  upon  said  property  after  it  is  removed  into  this 
State,  as  to  purchasers  for  valuable  consideration  without  notice 
and  creditors,  unless  the  mortgage  or  incumbrance  was  recorded 
according  to  the  laws  of  this  State,  in  any  county  or  corporation  in 

43.  Williamson   v.    Bowie,   6   Munf.    176. 

44.  Farmers'  Bank  v.  Day,  6  Gratt.  360;  Haffey  v.  Miller,  6  Gratt. 
454. 

45.  Erskine  v.  Staley,  12  Leigh  406;  Farmers'  Bank  v.  Day,  6  Gratt. 
360. 

46.  Puryear  v.  Taylor,  12  Gratt.  401. 

47.  Smith  v.   Smith,   19   Gratt.   545. 

48.  Craig  v.  Williams,  90  Va.  500,  18  S.   E.   899. 


§    367  WHEN   ATTACHMENT   TO   ISSUE  715 

which  the  said  property  is  located  in  this  State,  thus  overruling 
the  last  mentioned  decision.49  If,  however,  an  assignment  of  a 
chose  in  action  be  made  out  of  the  State  by  deed  of  trust  or 
otherwise,  it  will  prevail  over  a  subsequent  attachment  thereof 
in  this  State,  although  there  was  no  record  of  the  assignment. 
Assignments  of  choses  in  action  are  not  required  to  be  recorded, 
and  the  attaching  creditor  can  get  no  greater  interest  than  his 
debtor  had.50  The  home  defendant  having  property  of  the  absent 
defendant  in  his  possession,  for  the  keeping  of  which  the  absent 
debtor  is  indebted  to  him,  is  entitled  to  have  his  claim  first  satis- 
fied out  of  the  property  as  against  the  attaching  creditor,51  and 
so  if  the  property  attached  is  subject  to  a  pledge,  the  lien  of 
the  pledge  must  be  first  satisfied.52  An  additional  attachment 
sued  out  on  new  grounds  does  not  relate  back  to  the  time  of  the 
levy  of  the  original  attachment,  but  dates  from  the  time  of  its  own 
levy,  and  the  rights  of  other  persons  are  to  be  ascertained  and 
fixed  with  reference  to  the  time  of  levying  the  additional  at- 
tachment.53 / 

The  increase  of  personal  property  attached  probably  passes 
as  an  incident  without  any  additional  levy.54 

§  367.    When  attachment  to  issue. 

If  no  suit  or  action  is  pending,  but  the  attachment  is  a  wholly 
independent  proceeding,  we  have  seen  that  the  attachment  can 
issue  in  but  two  cases:  (1)  where  •  a  debtor  intends  to  re- 
move, or  is  removing,  or  has  removed  his  effects  out  of  the 

49.  Code,  §  2468a. 

50.  Gregg  f.   Sloan,   76   Va.   497.     See   also,   Kirkland  v.    Brune,   31 
Gratt.  126. 

51.  Williamson  r.  Gayle.  7  Gratt.  152. 

52.  First  Xat.  Bank  r.  Harkness,  42  W.  Va.  156,  24  S.   E.  548. 

53.  Miller  r.  White,  46  W.  Va.   67,  33  S.   E.  332. 

Xo  reference  has  been  made  to  the  case  of  Cirode  r.  Buchanan, 
22  Gratt.  205,  because  it  is  believed  to  be  out  of  harmony  with  the 
cases  which  precede  and  follow  it,  and  it  is  not  believed  to  have 
been  correctly  decided.  It  is  only  mentioned  here  to  indicate  that 
it  has  not  been  overlooked. 

54.  Cf.  Gannaway  r.  Tate.  98  Va.  789,  37  S.  E.  768. 


716  ATTACHMENTS  §    367 

State,  and  (2)  against  a  tenant  who  intends  to  remove,  or  is 
removing,  or  has,  within  thirty  days,  removed  his  effects  from 
the  leased  premises.  In  each  of  these  cases  the  attachment  may 
be  sued  out  before  the  debt  or  rent  is  due.  There  is  no  other  limi- 
tation on  the  right  to  issue  the  attachment  except  that  it  must  be 
issued  within  a  reasonable  time  after  the  affidavit  therefor  is 
made.55  If,  however,  the  attachment  is  sued  out  as  an  ancillary 
process,  then  the  attachment  must  not  be  sued  out  too  soon  or  too 
late.  It  is  too  soon  if  sued  out  before  the  action  or  suit  is  com- 
menced, and  it  is  too  late  if  sued  out  after  the  suit  has  been  abated 
or  ended.  The  statute  declares  that  it  may  be  sued  out  "at  the 
time  of  or  after  trie  institution  of  any  action  at  law,"56  or  if  is- 
sued in  equity  "on  a  bill  in  equity  filed  for  the  purpose,"37  or 
thereafter.58  Generally  no  suit  or  action  is  pending  at  the  time 
the  attachment  is  desired,  and  the  practice  is  to  institute  a  proper 
suit  or  action  and  to  sue  out  the  attachment  at  the  same  time  that 
the  summons  is  delivered  to  the  officer. 

If  the  proceeding  is*  by  a  motion  for  a  judgment  for  money 
under  Code,  section  3211,  it  is  not  deemed  to  be  a  pending  ac- 
tion until  the  notice,  duly  executed,  has  been  returned  to  the 
clerk's  office,  and  hence  until  that  time  no  attachment  can  is- 
sue.59 Hence,  if  the  only  ground  of  attachment  is  the  non-resi- 
dence of  a  sole  defendant,  or  of  all  of  the  defendants,  and  he  or 
they  cannot  be  served  with  notice,  and  do  not  appear,  the  pro- 
ceeding cannot  be  begun  by  a  motion  under  section  3211,  as  the 
notice  never  can  be  returned  executed  on  the  defendant.  But 
the  proceeding  may  be  by  motion  under  that  section  if 
process  can  be  executed  on  one  or  more  of  the  defendants.60 
There  must  be  a  pending  suit  or  action,  if  the  attachment  is  to 
be  ancillary  thereto.  No  attachment  can  issue  in  such  case  in 
a  suit  or  action  which  has  abated.  The  return  of  "no  inhab- 
itant" would  cause  the  abatement  of  the  suit  or  action  as  to  such 

55.  Kesler  v.  Lapham,  46  W.  Va.  293,  33  S.  E.  289. 

56.  Code,   §   2959. 

57.  Code,   §   2964. 

58.  Code,   §   2966. 

59.  See,  ante,  §  97. 

60.  Breeden  v.  Peale,  106  Va.  39,  55  S.  E.  2. 


§    368  DEFENCES    TO    ATTACHMENTS  717 

defendant,  and  if  he  is  the  sole  defendant,  of  the  entire  action. 
Hence  it  is  important  to  see  that  the  garnishee-process  issues 
before  such  a  return  is  made.61  Indeed,  the  better  practice  is 
to  have  the  officer  make  the  return  of  "not  found"  instead  of  the 
return  of  "no  inhabitant"  of  the  state. 

If  ground  for  attachment  exist,  the  affidavit  may  be  made  and 
the  attachment  sued  out,  and  levied,  even  after  the  appearance 
of  the  debtor.  .The  action  is  still  pending  and  there  may  be  both 
a  personal  judgment  and  an  order  subjecting  the  attachment  ef- 
fects.62 

» 

§  368.    Defences  to  attachments. 

Who  May  Make  Defence. — There  is  a  difference  between 
rtfaking  defence  to  the  attachment  and  defence  to  the  action  to 
which  the  attachment  is  ancillary.  The  mere  fact  that  an  action 
has  an  attachment  as  ancillary  thereto  does  not  at  all  affect  the 
defences  to  the  action.  The  action  is  still  subject  to  the  same 
defences  as  if  there  were  no  attachment.  These  defences  have 
been  hereinbefore  discussed  in  connection  with  the  separate  ac- 
tions. We  are  here  dealing  only  with  defences  to  the  attachment. 
It  is  provided  by  statute  that  either  of  the  defendants  to  any  such 
attachment,  or  any  garnishee,  or  any  party  to  a  forthcoming  bond 
given  with  condition  to  have  the  property  forthcoming,  or  the 
officer  who  may  be  liable  to  the  plaintiff  if  such  bond  be  ad- 
judged bad,63  or  any  person  having  a  claim  to,  an  interest  in,  or 
a  lien  on  the  property  attached,64  may  make  defence  to  such  at- 

61.  Pulliam   v.   Aler,    15    Gratt.    54,    59. 

62.  O'Brien  v.   Stephens,    11    Gratt.   610. 

63.  Section    2980    of   the    Code    is    as    follows:     "Eithe'r    of   the    de- 
fendants   in    any    such    attachment,    or    any    garnishee,    or    any    party 
to  any  forthcoming  bond  given  as  aforesaid,  or  the  officer,  who  may 
be    liable    to    the    plaintiff   by    reason    of    such    bond    being   adjudged 
bad,  or   any  person   authorized  by  section  twenty-nine   hundred   and 
eighty-four,    to    file    a    petition,    may    make    defence    to    such    attach- 
ment,   but    the   attachment    shall    not    thereby    be    discharged,    or   the 
property   levied    on    released." 

64.  Section  2984  of  the  Code  is  as  follows:     "Any  person  may  file 
his  petition,  at  any  time  before  the  property  attached  as  the   estate 
of  a  defendant  is  sold,  or  the  proceeds  of  sale  paid  to  the  plaintiff 
under   the   decree    or  judgment,   disputing   the   validity   of   the   plain- 


718  ATTACHMENTS  §    368 

tachment,  but  the  attachment  shall  not  be  thereby  discharged,  or 
the  property  levied  on  released.  It  had  been  held  in  an  early 
case  in  Virginia  that  if  the  defendant  were  permitted  to  contest 
the  case  without  giving  security  to  perform  the  decree,  or  if  the 
plaintiff  waived  the  giving  of  the  security,  the  effect  was  to  re- 
lease the  property  from  the  attachment.65  In  order  to  obviate 
this  difficulty,  the  statute  provides  that  the  parties  designated 
may  make  defence  to  such  attachment,  but  that  the  attachment 
shall  not  thereby  be  discharged  or  the  property  levied  on  re- 
leased, thus  leaving  the  attachment  and  the  levy  thereon  intact 
until  the  case  is  decided.  The  language  of  the  statute,60  allow- 
ing "any  person"  to  file  a  petition  disputing  the  validity  of  the 
plaintiff's  attachment,  is  qualified  by  the  subsequent  language  of 
that  section  so  as  to  confine  the  right  to  a  petitioner  who  has  ti- 
tle to,  a  lien  on,  or  any  interest  in  the  property,  and  the  right  is 
not  extended  to  creditors  generally.  A  general  creditor  who  has 
no  claim  to,  interest  in  or  lien  on  the  property  attached  has  no 
right,  merely  because  he  is  a  creditor,  to  intervene  and  dispute 
the  validity  of  the  plaintiff's  attachment.67 

What  Defence  May  Be  Made. — It  must  be  borne  in  mind  that 
we  are  still  discussing  defences  to  the  attachment,  and  not  to  the 
action.  The  statute  in  Virginia  provides  that  the  right  to  sue  out 
the  attachment  may  be  contested,  and  that  when  the  court  is  of 
opinion  that  it  was  issued  on  a  false  suggestion,  or  without  suffi- 
cient cause,  the  attachment  shall  be  abated.68  It  will  be  observed 

tiff's  attachment  thereon,  or  stating  a  claim  thereto,  or  an  interest 
in  or  lien  on  the  same,  under  any  other  attachment  or  otherwise, 
and  its  nature,  and  upon .  giving  security  for  costs,  the  court,  with- 
out any  other  pleading,  shall  inquire  into  such  claim,  or,  if  either 
party  demand  it,  impanel  a  jury  for  that  purpose,  and  if  it  be  found 
that  the  petitioner  has  title  to,  or  a  lien  on,  or  any  interest  in, 
such  property,  or  its  proceeds,  the  court  shall  make  such  order  as 
may  be  necessary  to  protect  his  rights,  the  costs  of  which  inquiry 
shall  be  paid  by  either  party,  at  the  discretion  of  the  court." 

65.  Tiernan  v.  Schley,  2   Leigh   25. 

66.  Code,   §   2984. 

67.  Miller  v.  White,  46  W.   Va.   67,  33   S.  E.   332. 

68.  Section    2981    of   the    Code    is    as    follows:      "The    right    to    sue 
any     such    attachment    may   be    contested;    and   when    the   court    is  » 
of  opinion  that  it  was  issued  on  false  suggestions,  or  without  suffi- 


DEFENCES    TO    ATTACHMENTS  719 

that  any  defence  may  be  made  which  shows  that  the  attachment 
was  issued  on  false  suggestion  (that  the  ground  assigned  was 
sufficient,  but  not  true),  or  without  sufficient  cause  (the  ground 
assigned  was  not  sufficient,  although  true).  The  attachment 
debtor  cannot  defend  on  the  ground  that  the  goods  attached  do 
not  belong  to  him,  but  to  a  third  person.  This  is  not  a  good 
ground  of  defence  on  his  part,  and  the  rights  of  third  persons 
are  otherwise  amply  protected.69 

On  a  motion  to  abate  (quash)  the  attachment,  the  burden  of 
proof  is  on  the  plaintiff  in  the  attachment,  and  if  the  ground  of 
the  motion  to  abate  be  that  the  attachment  was  sued  out  upon  a 
false  suggestion,  the  issue  is  not  what  the  plaintiff  believed  or 
had  probable  cause  to  believe,  but  the  actual  existence  of  the 
facts  warranting  the  attachment.  "This  remedy"  (attachment) 
"is  justified,  not  by  the  belief  of  the  affiant,  however  honestly 
entertained  upon  reasonable  grounds,  that  the  fact  sworn  to 
in  the  affidavit  exist,  but  by  the  existence  of  that  fact."70  One  or 
more  of  the  grounds  of  attachment  given  by  the  statute  must 
actually  exist,  and  if  the  court  or  jury  are  satisfied  that  they  do 
not  exist,  then  the  attachment  was  issued  on  a  false  suggestion, 
and  must  be  abated,  no  matter  what  the  belief  of  the  plaintiff 
was,  or  how  reasonable  the  belief  may  have  been.  For  example, 
if  the  ground  of  attachment  be  that  the  defendant  is  about  to 
remove  his  effects  out  of  the  state,  and  it  turns  out  upon  the  proof 
that  there  was  no  such  intention,  then  the  attachment  must  be 
abated,  although  the  plaintiff  may  have  had  reasonable  grounds 

cient  cause,  judgment  shall  be  entered  that  it  shall  be  abated.  If 
the  attachment  be  returnable  to  a  circuit  or  corporation  court,  the 
judge  thereof  may,  in  vacation,  either  before  or  at  any  time  after 
it  has  been  returned,  on  the  motion  of  any  one  or  more  of  the 
persons  mentioned  in  the  preceding  section,  upon  reasonable  no- 
tice of  the  motion  to  the  attaching  creditor,  hear  testimony  and 
quash  the  attachment,  if  of  the  opinion  that  it  is  invalid  on  itb  face, 
or  was  issued  on  false  suggestions,  or  without  sufficient  cause. 
When  the  attachment  is  properly  sued  out,  and  the  case  is  heard 
upon  its  merits,  if  the  court  be  of  opinion  that  the  claim  is  not 
established,  final  judgment  shall  be  given  for  the  defendant.  In 
either  case  he  shall  recover  his  costs,  and  there  shall  be  an  order 
for  the  restoration  of  the  attached  effects  to  him." 

69.  Note.   123  Am.   St.   Rep.  1041. 

70.  Sublett  r.  Wood,  76  Va.  318;  note,  123  Am.  St.  Rep.  1032. 


720  ATTACHMENTS  §    368 

for  believing  that  the  defendant  was  about  to  remove  his  effects 
from  the  State.  After  the  attachment  has  been  abated  for  the 
reasons  just  stated,  if  the  defendant  in  the  attachment  should 
sue  the  plaintiff  for  malicious  prosecution  of  his  attachment  be- 
cause issued  on  a  false  suggestion,  the  plaintiff  in  the  attachment 
(the  now  defendant)  may  make  defence  on  the  ground  that,  al- 
though there  was  not  actual  cause  for  suing  out  the  attachment, 
yet  that  he  had  probable  cause  for  believing  the  ground  of  at- 
tachment assigned  to  be  true,  and  if  he  sustains  this  defence  by 
proof,  it  will  defeat  the  action  for  malicious  prosecution.  This 
distinction  between  actual  cause  and  probable  cause  must  be 
borne  in  mind.  Unless  the  cause  for  suing  out  the  attachment 
actually  existed,  the  attachment  will  be  defeated,  but  if  the  plain- 
tiff in  the  attachment  had  probable  cause  for  believing  that  there 
was  actual  cause  for  suing  out  the  attachment,  this  will  defeat 
the  action  for  malicious  prosecution.  Thus,  in  the  instance  last 
given,  although  the  defendant  in  the  attachment  did  not  intend 
to  remove  his  effects  out  of  the  State,  yet  if  the  plaintiff  in  the 
attachment  had  probable  cause  for  believing  that  he  intended  to 
remove  them,  this  is  a  sufficient  answer  to  the  action  for  ma- 
licious prosecution.71  If  the  sole  ground  of  jurisdiction  of  the 
action  or  suit  to  which  the  attachment  is  ancillary  is  the  right 
to  sue  out  the  attachment,  and  there  has  been  no  appearance  to 
the  merits,  then  the  validity  of  the  attachment  is  jurisdictional, 
and  in  this  instance  the  regularity  of  the  attachment  must  appear 
on  the  face  of  the  proceedings,  and  the  defence  of  irregularity 
may  be  raised  anywhere,  at  any  time,  in  any  way,  and  will  even 
be  noticed  by  the  court  ex  officio,  or  may  be  raised  in  the  appel- 
late court  for  the  first  time.  Thus,  if  the  only  ground  of  juris- 
diction is  the  non-residence  of  the  defendant,  and  he  has  not 
appeared,  nor  been  served  with  process,  and  the  attachment  is 
made  returnable  to  rules,  when  the  statute  requires  that  it 
should  be  returnable  to  a  term  of  the  court,  then  no  valid  at- 
tachment has  been  issued,  and  the  court  issuing  it  is  without 
jurisdiction,  and  hence  the  objection  may  be  raised  in  the  ap- 
pellate court  for  the  first  time,  or  the  court  may  of  its  own  motion 

71.  1  Va.  Law  Reg.  232;  Claflin  v.  Steenbock,  18  Gratt.  842,  853; 
Sublett  v.  Wood,  76  Va.  318;  Spengler  v.  Davy,  15  Gratt.  381; 
Burkhart  v.  Jennings,  2  W.  Va.  242. 


§    368  DEFENCES    TO    ATTACHMENTS  721 

dismiss  the  proceeding.72  So,  likewise,  if  an  attachment  is  is- 
sued as  ancillary  to  an  action  at  law,  but  the  attachment  was 
sued  out  before  the  action  was  instituted,  the  attachment  is  in- 
valid, for  the  statute  does  not  authorize  such  an  ancillary  attach- 
ment, except  "at  the  time  of  or  after  the  institution  of  any 
action  at  law."  Here  the  attachment  has  been  issued  without 
authority  of  statute,  and  the  objection  may  be  raised  for  the 
first  time  in  the  appellate  court.  In  this  case  it  is  immaterial 
that  the  defendants  had  appeared  to  the  action.  The  statute 
simply  does  not  authorize  an  attachment  to  issue  until  the  action 
has  been  instituted.73 

If  the  writ-tax  on  an  attachment  is  not  paid  within  thirty  days 
from  the  time  the  attachment  is  actually  returned  the  attachment 
and  the  proceedings  thereon  are  to  be  taken  as  dismissed.731 

When  Defence  May  Be  Made. — It  is  provided  by  statute  that 
a  motion  to  quash  an  attachment  may  be  made  either  before  or 
at  any  time  after  the  attachment  has  been  returned.  The  motion 
may  be  made  (where  the  attachment  is  returnable  to  the  circuit 
or  corporation  court)  either  before  the  court,  or  the  judge 
thereof  in  vacation.  This  motion  is  made  upon  reasonable  notice 
to  the  attaching  creditor,  and  the  court  or  judge  may  hear  testi- 
mony and  quash  the  attachment  if  of  opinion  that  it  is  invalid 
on  its  face,  or  was  issued  on  false  suggestion,  or  without  suffi- 
cient cause.  The  statute  does  not  say  expressly  that  the  court 
may  hear  the  motion,  but  this  is  necessarily  implied.74  It  seems  to 
be  well  settled  that  the  notice  of  this  motion  should  specify  the 
grounds  upon  which  it  is  based.  It  is  not  sufficient  to  state  that 
it  is  based  on  irregularities  without  specifying  the  irregularities 
complained  of.75 

How  Defence  Is  Made. — In  a  few  States  it  is  held  that  if  the 
objection  to  the  attachment,  or  the  affidavit  on  which  it  is 
founded,  is  for  matter  de  hors  the  record,  it  can  be  raised  only 
by  a  plea  in  abatement,  but  the  great  weight  of  authority  is  that 

72.  McAllister  v.   Guggenheimer,  91  Va.  317,  21  S.   E.  475. 

73.  Furst  Bros.  v.  Banks,  101  Va.  208,  43  S.  E.  360. 
73a.  Acts  1912,  p.  498,  amending  Code,  §  2965. 

74.  Code,   §  2981. 

75.  Note,   123   Am.    St.    Rep.    1056. 
—46 


722  ATTACHMENTS  §    368 

for  matters  de  hors  the  record  objection  can  be  made  by  a  mo- 
tion to  quash,  supported  by  proper  proof.  It  is  said  that  the 
difference  in  the  two  defences  consists  mainly  in  the  mode  of 
establishing  the  defects.  ."In  one  instance  it  is  by  an  inspection 
of  the  record,  in  the  other  it  is  by  a  production  of  the  evidence, 
but  this  dissimilarity  in  the  mode  of  proof  can  make  no  difference 
in  the  nature  of  the  thing  proved."76  In  Virginia  it  would  seem 
that  practically  all  valid  objections  to  an  attachment  may  be 
made  on  a  motion  to  quash.  If  the  affidavit,  upon  which  the  at- 
tachment is  based  is  defective  or  untrue,  the  remedy  is  by  a 
motion  to  quash.77  But  if  the  attachment  is  merely  ancillary  to 
an  action  or  suit,  the  merits  of  the  action  cannot  be  inquired  into 
on  a  motion  to  quash  the  attachment.78 

A  defendant  to  an  attachment  suit  who  has  not  been  summoned, 
and  has  not  voluntarily  appeared,  nor  waived  summons,  may 
appear  specially  for  the  purpose  of  moving  to  quash  an  attach- 
ment or  to  dismiss  an  action,  and  such  special  appearance  does 
not  give  the  court  jurisdiction  to  proceed  to  judgment  in  the 
action,  nor  does  it  waive  the  defects.79  If  the  only  ground  of 
jurisdiction  is  the  attachment  of  the  effects  of  a  nonresident, 
and  the  attachment  is  abated,  the  action  founded  thereon  should 
be  dismissed  on  a  motion  for  that  purpose,  and  the  special  ap- 
pearance for  the  purpose  of  moving  to  dismiss  on  this  ground  is 
not  an  appearance  to  the  action.80 

A  variance  between  the  claim  stated  in  the  affidavit  and  the 
demand  set.up  in  the  declaration  is  fatal  to  the  attachment,  and 
upon  a  motion  to  quash  the  attachment  for  such  variance  the 
declaration  may  be  resorted  to  for  the  purpose  of  establishing  the 
variance.  A  plea  in  abatement  is  not  necessary,  but  if  such 
variance  is  pleaded  in  abatement,  and  the  plea  be  accompanied 

76.  Note,  123  Am.  St.  Rep.  1043,  44;  Johnson  v.  Stockham,  89  Md. 
368,   43   Atl.   943. 

77.  Anderson  v.  Johnson,  32  Gratt.  558;  Hilton  v.  Consumers'  Can 
Co.,   103   Va.   255,   48   S.    E.   899. 

78.  Note,  123  Am.   St.    Rep.   1058;   3    End.   PI.   &  Pr.   79. 

79.  Wynn  v.   Wyatt,   11   Leigh   584;    Pulliam  v.   Aler,   15   Gratt.   54, 
62;  Hilton  v.  Consumers'  Can  Co.,  supra;  Petty  v.  Frick,  86  Va.  501, 
10   S.   E.   886. 

80.  Hilton  v.  Consumers  Can  Co.,  supra;   Miller  v.   Zeigler,  44  W. 
Va.   484,  29   S.   E.  981. 


§    368  DEFENCES    TO    ATTACHMENTS  723 

by  an  oral  motion  to  quash,  it  will  be  treated  as  a  motion  to 
quash.81  The  variance,  however,  must  be  material.  A  slight, 
or  unsubstantial  variance  is  not  sufficient.82 

Although  only  one  member  of  a  partnership  be  a  nonresident, 
his  interest  in  the  social  assets  may  be  attached,  and  if  an  at- 
tachment in  equity  be  sued  out  against  a  partnership  and  levied 
on  the  interest  of  the  nonresident  partner  in  the  social  assets, 
all  the  partners  should  be  before  the  court  by  notice,  actual  or 
constructive,  before  any  decree  is  made  in  relation  to  the  partner- 
ship property,  but  where  some  of  the  parties  have  been  served  it 
is  error  to  abate  the  attachment  and  dismiss  the  suit  simply  be- 
cause an  order  of  publication  had  not  been  taken  against  the  non- 
resident. What  the  court  should  do  is  to  require  the  plaintiff  to 
mature  his  suit  within  a  reasonable  time  as  to  the  absent  partner, 
and  if  he  fails  to  do  so,  then  to  abate  the  attachment  and  dismiss 
the  suit.83  An  order  of  attachment  not  signed  by  the  clerk  is  not 
void,  but  voidable  only,  and  may  be  amended  by  adding 
his  signature.  If  the  signature  be  added  before  the  motion  to 
quash  is  made,  the  order  is  good  against  such  motion.  The 
court  has  inherent  power  without  statutory  authority  to  allow 
mere  clerical  errors  and  omissions  of  its  officers  to  be  corrected 
and  amended.84  When  an  attachment  bond  purports  to  be  signed 
by  the  plaintiff  by  an  attorney  in  fact,  the  court  will  not  sustain 
a  motion  to  quash  the  bond  for  this  supposed  defect.  If  the 
attorney  in  fact  had  no  authority  to  sign  the  plaintiff's  name, 
this  defect  can  be  taken  advantage  of  only  by  a  plea  in  abate- 
ment, if  it  can  be  taken  advantage  of  at  all.85  An  order  overrul- 
ing a  motion  to  quash  an  attachment  is  interlocutory  merely,  and 
does  not  preclude  the  renewal  of  the  motion  at  a  later  time.86 

Defence  to  the  Merits. — As  already  pointed  out,  a  defence  to 
the  merits  of  the  action  to  which  the  attachment  is  ancillary  will 
not  usually  be  allowed  on  a  motion  to  quash.  While  the  language 

81.  Simmons  v.  Simmons,  56  W.  Va.  65,  48  S.  E.  833. 

82.  Duty  v.  Sprinkle,  64  W.  Va.  39,  60  S.  E.  882. 

83.  Brown  v.   Gorsuch,  50  W.  Va.  5.14,  40  S.   E.  376. 

84.  Miller  v.  Zeigler,  44  W.  Va.  484,  29  S.  E.  981. 

85.  Tingle  v.  Brison,  14  W.  Va.  295. 

86.  Simmons  v.   Simmons,   56  W.  Va.   65,  48   S.   E.  833. 


724  ATTACHMENTS  §    368 

of  Code,  §  2981,  appears  to  be  comprehensive — "the  right  to  sue 
out  any  such  attachment  may  be  contested" — yet  the  subsequent 
language  of  that  section  seems  to  limit  the  grounds  of  contest  to 
whether  or  not  the  attachment  is  "invalid  on  its  face,  or  was 
issued  on  false  suggestions,  or  without  sufficient  cause."  Under 
any  attachment  proceeding  it  is  necessary  for  the  plaintiff  to 
establish  his  claim,  whether  there  is  any  appearance  by  the  de- 
fendant or  not,  before  he  can  take  judgment  against  the  debtor, 
or  have  the  effects  sold.87  A  subsequent  attaching  creditor  may 
contest  the  validity  of  the  plaintiff's  debt  in  a  prior  attachment 
and  show  that  the  debt  does  not  exist,  or  has  been  paid.88  The 
prime  object  in  levying  the  attachment  is  to  obtain  pendente  lite 
a  lien,  or,  in  other  words,  to  put  the  property  in  the  custody  of 
the  law  till  by  the  judgment  of  the  proper  tribunal  the  plaintiff's 
claim 'is  established,  when  the  lien  becomes,  effective  as  of  the 
date  of  the  levy,  but  must  be  enforced,  not  by  virtue  of  the  writ 
of  attachment,  but  by  the  judgment  of  the  court  ordering  a 
sale  of  the  property  which  the  attachment  has  simply  held  in  wait- 
ing.89 If  the  attachment  be  issued  in  a  pending  suit  and  is 
merely  ancillary  to  the  suit  the  defendant  may  make  any  defence 
which  would  defeat  the  plaintiff's  claim,  just  as  he  might  do  in 
any  other  action  or  suit.  He  may  also  make  defence  to  the  at- 
tachment, and  although  the  attachment  be  abated  or  quashed, 
if  the  plaintiff  establishes  his  demand  and  the  defendant  has 
been  served  with  process,  or  has  appeared,  the  plaintiff  is  entitled 
to  a  personal  judgment  or  decree  for  the  amount  of  his  claim. 
In  equity  garnishees  and  other  parties  besides  the  attachment 
debtor  are  generally  made  parties  defendant  to  the  suit  and  set 
up  by  answer  all  the  defences  they  are  entitled  to  make.  If  the 
person  seeking  to  make  defence  be  already  a  party  to  the  pro- 
ceedings, he  may  defend  by  demurrer,  plea  in  abatement,  plea  to 
the  merits,  or  other  appropriate  pleading.  If  he  seeks  to  defend 
simply  the  attachment  and  not  the  action,  he  may,  after  being 
admitted  to  the  attachment  proceeding,  also  move  to  quash  the 

87.  Withers  v.  Fuller,  30  Gratt.  547. 

88.  M'Cluny  v.  Jackson,  6  Gratt.  96,  104-'5. 

89.  Dorrier  v.  Masters,  83  Va.  459,  473,  2  S.  E.  927.     See  also,  Trim- 
ble v.  Covington  G.  Co.,  112  Va.  826,  72  S.   E.  724. 


§    368  DEFENCES    TO   ATTACHMENTS  725 

attachment.  Usually  persons  who  wish  to  intervene  in  a  suit 
desire  to  do  so  in  order  to  defend  and  defeat  the  attachment, 
and  not  to  appear  to  the  merits  of  the  plaintiff's  claim.  In  such 
case,  if  such  a  person  is  not  already  a  party  to  the  attachment 
suit,  and  has  a  right  to  defend  the  attachment,  or  to  assert  a 
claim  to,  an  interest  in,  or  a  lien  upon  the  attached  effects,  he 
may  file  a  petition  in  the  attachment  suit  setting  up  his  claim  and 
the  nature  thereof  at  any  time  before  the  attached  property  is 
sold  or  the  proceeds  paid  over;  and  upon  giving  security  for 
costs  he  is  admitted  a  party  and  the  court,  without  any  other 
pleading  shall  inquire  into  his  claim,  or,  if  either  party  demand 
it,  impanel  a  jury  for  that  purpose,  and  if  it  be  found  that  he 
is  entitled  to  a  lien  on  or  an  interest  in  the  property  or  its  pro- 
ceeds, the  court  will  make  such  order  as  will  be  necessary  to  pro- 
tect his  rights.90  Formerly  the  statute  was  mandatory  that  the 
matter  put  in  issue  by  this  petition  should  be  tried  by  a  jury,  and 
it  was  held  to  be  error  for  the  court  to  undertake  to  decide  the 
issue,91  but  under  the  present  statute92  the  court  is  directed  to 
make  the  inquiry  unless  one  of  the  parties  demands  a  jury. 
In  an  intervention  proceeding  under  this  statute,  if  two  or  more 
attachments  be  levied  on  the  property  of  the  same  debtor  by 
different  creditors,  the  subsequent  attaching  creditor  may  move 
to  quash  the  earlier  attachment  for  defects  in  the  attachment, 
the  writ  or  its  service,  and  if  the  earlier  attachment  is  quashed, 
the  later  thereby  becomes  entitled  to  priority  of  lien  on  the 
property.  As  the  subsequent  creditor  is  allowed  to  question  the 
validity  of  the  proceedings  on  the  prior  attachment,  so  also  the 
first  attaching  creditor  has  the  correlative  right  of  denying  the 
validity  of,  or  otherwise  contesting  the  intervenor's  attachment, 
or  claim.93 

Judgment  for  the  Plaintiff. — When  the  plaintiff's  claim  is  es- 
tablished, judgment  or  decree  should  be  rendered  for  him,  and 
an  order  of  sale  made,  and  the  proceeds  of  the  sale  be  directed 
to  be  applied  to  the  satisfaction  of  the  judgment  or  decree,  but 

90.  Code,  §  2984. 

91.  Anderson  v.  Johnson,  32   Gratt.  558. 

92.  Code,  §  2984. 

93.  Miller  v.  White,  46  W.  Va.  67,  33  S.  E.  332. 


726  ATTACHMENTS  §    368 

no  real  estate  can  be  sold  until  all  other  property  and  money 
subject  to  the  attachment  have  been  exhausted,  and  then  only  so 
much  thereof  as  is  necessary  to  satisfy  the  judgment  or  decree.94 
Formerly,  when  an  attachment  at  law  was  levied  on  real  prop- 
erty, serious  difficulties  existed  as  to  how  real  estate  should  be 
sold  and  the  deed  made  to  the  purchaser,  but  the  statute  now 
provides  that  "Upon  a  sale  of  real  estate,  under  an  attachment 
at  law,  the  court  shall  have  the  same  powers  and  jurisdiction, 
and  the  like  proceedings  thereon  may  be  had,  as  if  it  were  a 
sale  of  real  estate  under  an  attachment  in  equity."95  If  the  de- 
fendant has  not  appeared  or  been  served  with  a  copy  of  the  at- 
tachment sixty  days  before  the  judgment  or  decree,  the  plaintiff 
is  not  given  the  benefit  of  the  order  of  sale  unless  he  gives  bond 
with  approved  security  in  such  penalty  as  the  court  shall  ap- 
prove with  condition  to  perform  such  future  order  as  may  be 
made  upon  the  appearance  of  the  defendant  and  his  making 
defence,  and  if  he  fails  to  give  the  bond  within  a  reasonable 
time,  the  court  is  to  dispose  of  the  estate  attached,  or  the  pro- 
ceeds thereof  as  to  it  shall  seem  just.96  It  has  been  herein- 

94.  Section  2982  of  the  Code   is   as  follows:     "If  the  claim  of  the 
plaintiff   be    established,   judgment    or    decree    shall    be    rendered    for 
him,  and  the  court  shall  dispose  of  the   specific  property  mentioned 
in  sections  twenty-nine  hundred  and  sixty  and  twenty-nine  hundred 
and    sixty-four,   as   may   be    right,    and    order    the    sale   of   any    other 
effects  or  real  estate,  which  shall  not  have  been  previously  released 
or    sold    under    this    chapter,    and    direct    the    proceeds    of    sale,    and 
whatever   else   is   subject   to   the   attachment,   including   what   is    em- 
braced by  such  forthcoming  bond,  to  be  applied  in  satisfaction  of  the 
judgment  or  decree.     But  no  real  estate  shall  be  sold  until  all  other 
property  and  money  subject  to  the  attachment  have  been  exhausted, 
and  then  only  so  much  thereof  as  is  necessary  to  pay  the  judgment 
or  decree.     Upon  a  sale  of  real  estate,  under  an  attachment  at  law, 
the  court  shall  have  the  same  powers  and  jurisdiction,  and  the  like 
proceedings  thereon  may  be  had,  as  if  it  were  a  sale  of  real   estate 
under  an  attachment  in  equity." 

95.  Code,   §   2982. 

96.  Section    2983    of    the    Code    is    as    follows:      "If    the    defendant 
against   whom  the   claim   is,   has   not   appeared   or   been   served  with 
a   copy   of  the  attachment   sixty   days   before   such  judgment  or   de- 
cree, the  plaintiff  shall  not  have  the  benefit  of  the  preceding  section, 
unless   and    until    he    shall    have    given    bond,    with    sufficient    surety, 


§    368  DEFENCES    TO    ATTACHMENTS  727 

before  pointed  out  that  this  is  an  additional  bond  to  the  bond 
required  at  the  institution  of  the  action  for  the  seizure  of  the 
property.97  The  service  of  the  attachment  sixty  days  before  the 
judgment  or  decree  referred  to  in  the  section  last  mentioned 
(§  2983)  need  not  be  a  service  within  the  state,  but  a  service 
outside  the  state  before  judgment  will  not  bar  the  rehearing 
accorded  the  non-resident  defendant  by  §  2986.98  Of  course,  no 
such  bond  is  required  when  the  defendant  has  appeared  or  been 
served  with  the  attachment  as  above  mentioned.99  There  may 
be  a  personal  judgment  or  decree  against  him  and  also  an  order 
for  the  sale  of  the  attached  effects  to  pay  the  judgment  or  decree.1 
In  an  attachment  of  real  estate  there  is  no  decree  for  renting  the 
land  to  pay  the  debt.2 

Order  of  Publication. — When  an  attachment  other  than  for 
rent  not  due,  or  against  a  defendant  about  to  remove  his  effects 
out  of  the  State,  is  returned  executed,  if  the  defendant  has  not 
been  served  with  a  copy  of  the  attachment  or  of  the  process  in 
the  suit  wherein  the  attachment  issued,  an  order  of  publication 
must  be  made  against  him.3  In  a  proceeding  by  attachment, 
the  mere  seizure  of  the  attached  effects  does  not  confer  jurisdic- 
tion upon  the  court  to  dispose  of  such  effects  to  the  prejudice 
of  the  owner.  An  opportunity  must  be  afforded  the  owner  to 
appear  and  be  heard,  and  to  this  end  the  notice  by  publication 
prescribed  by  the  statute  is  indispensable,  and  even  where  a  fund 
is  garnished  in  the  hands  of  a  third  person,  jurisdiction  cannot 
be  acquired  to  sequestrate  the  fund  attached  simply  by  service 
of  process  on  the  garnishee  only.  There  must  be  some  sort  of 
notice  to  the  non-resident  defendant.  Notice  of  some  kind  is 

in  such  penalty  as  the  court  shall  approve,  with  condition  to  per- 
form such  future  order  as  may  be  made  upon  the  appearance  of  the 
said  defendant,  and  his  making  defence.  If  the  plaintiff  fail  to  give 
such  bond,  in  a  reasonable  time,  the  court  shall  dispose  of  the  es- 
tate attached  or  the  proceeds  thereof,  as  to  it  shall  seem  just." 

97.  Ante,   §   365. 

98.  Anderson  v.  Johnson,   32   Gratt.  558,   568,   571.     Post,  §   371. 

99.  Anderson  v.  Johnson,  32  Gratt.  558. 

1.  O'Brien  r.   Stephens,   11   Gratt.   610. 

2.  Curry  v.  Hale,  15  W.  Va.  867. 

3.  Code,  §  2979. 


728  ATTACHMENTS  §    369 

indispensable  to  the  validity  of  the  judgment  of  condemnation  or 
sequestration.4 

§  3€9.    Remedies  for  wrongful  attachment. 

1.  We  have  already  seen  in  discussing  attachment  bonds  that 
if  the  plaintiff  desires  the  officer  to  take  possession  of  the  prop- 
erty of  the  debtor,  he  is  required  to  give  bond  with  "condition 
to  pay  all  costs  and  damages  which  may  be  awarded  against  him, 
or  sustained  by  any  person  by  reason  of  his  suing  out  the  at- 
tachment."5    If   an   attachment   against  the   defendant's   estate 
generally  has  been  wrongfully  sued  out  and  has  been  quashed, 
the  defendant  in  the  attachment,  or  any  person  injured  by  reason 
of  suing  it  out  (but  not  the  adverse  claimant  of  property  levied 
on,  as  he  is  not  injured  by  suing  out  the  attachment),  is  entitled 
to  maintain  an  action  on  the  bond.6 

2.  If  property  be  distrained  for  any  rent  not  due,  or  attached 
for  any  rent  not  accruing,  or  taken  under  any  attachment  sued 
out  without  good  cause,  the  owner  of  such  property  may,  in  an 
action  against  the  party  suing  out  the  writ  of  distress  or  attach- 
ment, recover  damages  for  the  wrongful  seizure,  and  also,  if 
the  property  be  sold,  for  the  sale  thereof.7     It  is  said  by  the 
Revisors  of  18498  that  this  section  was  designed  to  meet  both  the 
case  where  no  rent  is  due  or  accruing,  and  the  case  where  the 
distress  or  attachment  is  for  more  than  is  due  or  accruing.       In 
the  absence  of  any  charge  of  fraud,  malice,  oppression,  or  other 
special  aggravation,  the  measure  of  the  plaintiff's  damages  under 
this  statute  is  compensation  for  the  injury  suffered.9 

3.  If  the  attachment  is  void  ab  initio,  or  an  officer  levies  a  valid 
attachment  against  the  property  of  A.  on  the  property  of  B., 
then  the  officer  and  the  plaintiff  in  the  attachment  also,  if  he 

4.  Dorr  v.   Rohr,  82  Va.  359;  Capehart  v.  Cunningham,  12  W.  Va. 
750;   Raymond  v.  Camden,  22  W.  Va.  180;   Earle  v.   McVeigh,  91  U. 
S.  503;  Windsor  v.  McVeigh,  93  U.  S.  at  p.  279.     Ante,  §  192. 

5.  Ante,  §  365;  Code,  §  2968. 

6.  Ante,  §  365;  Davis  v.  Com.,  13  Gratt.  139,  143,  145,  151. 

7.  Code,   §  2898. 

8.  Report  of  Revisors,  p.  735,  and  note. 

9.  Fishburne  v.  Engledove,  91  Va.  548,  22  S.  E.  354. 


§    370  HOLDING  DEFENDANT   TO   BAIL  729 

directs  it,  is  liable  for  the  damages  sustained  in  the  common  law 
actions  of  trespass  or  trespass  on  the  case.  The  officer  and  the 
sureties  on  his  official  bond  would  be  likewise  liable  in  an  action 
on  that  bond  for  the  damages  sustained.10 

4.  If  the  attachment  was  sued  out  maliciously  and  without 
probable  cause  and  the  proceeding  is  ended  in  a  manner  not  un- 
favorable to  the  attachment  debtor,  then  he  may  bring  an  action 
of  trespass  on  the  case  for  malicious  prosecution  of  the  attach- 
ment. We  have  seen  that  in  the  attachment  proceeding  it  is  not 
sufficient  for  the  creditor  to  show  that  he  had  probable  cause  to 
believe  that  grounds  for  attachment  existed,  but  the  facts  sworn 
to  must  actually  exist,  so  that  however  good  cause  the  plaintiff 
may  have  had  for  suing  out  his  attachment,  the  attachment  will 
fall  if  the  ground  does  not  actually  exist.  If  the  facts  sworn  to 
did  not  actually  exist,  then  there  was  not  actual  or  real  cause  for 
the  attachment,  but  in  the  present  proceeding  for  malicious  prose- 
cution, if  the  attachment  creditor  had  probable  cause  for  believ- 
ing that  ground  for  attachment  existed,  the  action  for  malicious 
prosecution  will  be  defeated;  and  the  burden  is  on  the  plaintiff 
in  the  action  for  malicious  prosecution  to  show  that  the  defendant 
did  not  have  probable  cause  for  suing  out  the  attachment.  In 
other  words,  probable  cause  for  believing  in  the  existence  of  the 
ground  for  the  attachment  will  defeat  the  action  for  malicious 
prosecution,  but  will  not  sustain  the  attachment.  In  order  to 
sustain  the  attachment,  there  must  have  existed  actual  cause.11 

§  370.    Holding  defendant  to  bail. 

If,  in  any  action  or  suit,  the  plaintiff,  his  agent  or  attorney, 
shall  make  affidavit  before  the  court  in  which  it  is  pending,  or 
the  judge  thereof  in  vacation,  or  a  justice,  stating  that  the  plain- 
tiff has  cause  of  action  or  suit  against  the  defendant,  the  amount 
and  justice  of  his  claim,  and  that  there  is  probable  cause  for  be- 
lieving that  the  defendant  is  about  to  quit  the  State  unless  he  be 
forthwith  apprehended,  it  shall  be  lawful  for  such  court,  judge 

10.  Davis  r.  Com.,  13   Gratt.  142;   Sangster  v.  Com.,   17  Gratt.  124. 

11.  Spengler  v.  Davy,  15  Gratt.  381;  Claflin  v.  Steenbock,  18  Gratt. 
842;   Ogg  v.    Murdock,   25   W.   Va.   145;   1   Va.   Law   Reg.   232.     See 

ante,   §   368,  p.   717. 


730  ATTACHMENTS  §    370 

or  justice  to  direct  that  such  defendant  shall  be  held  to  bail  tor 
such  sum  as  the  court,  judge  or  justice  may  think  fit,  and  there- 
upon the'plaintiff  may  sue  out  of  the  clerk's  office  in  such  action 
or  suit  a  writ  of  capias  ad  respondendum  against  the  defendant.12 
It  will  be  observed  that  this  capias  can  be  issued  only  in  a  pend- 
ing action  or  suit,  therefore  the  action  or  suit  must  be  first  insti- 
tuted. The  plaintiff  when  he  makes  this  affidavit  must  believe 
that  the  facts  sworn  to  therein  are  true,  and  he  must  have  been 
justified  in  his  belief  from  the  facts  then  known  to  him.13  Upon 
this  capias  the  officer  arrests  the  defendant  and  confines  him  in 
jail,  unless  he  gives  bond  and  security  with  condition  that  if 
judgment  or  decree  shall  be  rendered  against  him,  upon  which 
a  writ  of  fieri  facias  may  issue  and  interrogatories  be  filed  with 
a  commissioner  of  the  court  wherein  such  judgment  or  decree 
is  rendered,  he  will,  at  such  time  as  the  commissioner  shall  issue 
a  summons  to  answer  such  interrogatories,  be  in  the  county  or 
corporation  in  which  such  commissioner  may  reside,  and  will, 
within  the  time  prescribed  in  such  summons,  file  proper  answers 
upon  oath  to  such  interrogatories,  and  make  such  conveyance  and 
delivery  of  his  property  as  is  required  by  law,  or  else  that  he  will 
perform  and  satisfy  the  judgment  of  decree  of  the  court14  This 
bond  which  is  to  be  given  by  the  defendant  may  be  taken  by  the 
officer  making  the  arrest,  or  by  the  court  from  which  the  capias 
issued,  or  the  judge  thereof  in  vacation,  or  by  the  clerk  of  such 
court,  but  not  by  the  justice.15  Before  the  plaintiff  can  sue  out 
such  a  capias,  however,  he  or  some  other  person  for  him  is  Ac- 
quired to  file  in  the  clerk's  office  bond  with  surety  approved  by 
the  clerk  in  a  penalty  equal  to  the  sum  in  which  the  defendant  is 
directed  to  be  held  to  bail,  payable  to  the  defendant,  with  condi- 
tion to  pay  all  costs  and  damages  which  may  be  awarded  against 
the  plaintiff,  or  sustained  by  the  defendant  by  reason  of  his  ar- 
rest under  such  capias.1®  While  the  defendant  is  in  custody,  the 

12.  Code,   §   2991. 

13.  Forbes   v.    Hagman,    75    Va.    168;    Spengler   v.    Davy,    15    Gratt. 
381. 

14.  Code,   §   2992. 

15.  Code,   §   2993. 

16.  Code,   §   2997. 


§  371  APPEAL  AND  ERROR  731 

plaintiff,  without  having  a  judgment  against  him,  may  file  in- 
terrogatories to  him  in  like  manner  as  might  be  done  if  judg- 
ment had  been  obtained,  and  a  fieri  facias  thereon  had  been  de- 
livered to  an  officer.  The  court  wherein  the  case  is  pending,  or 
the  judge  thereof  in  vacation,  may,  after  reasonable  notice  to  the 
plaintiff  or  his  attorney,  discharge  the  defendant  from  custody 
unless  interrogatories  be  filed  within  such  time  as  the  said  court 
or  judge  may  deem  reasonable,  or,  though  interrogatories  be 
filed,  may  discharge  him  when  proper  answers  thereto  are  filed 
and  proper  conveyance  and  delivery  made.17  This  statute  ap- 
plies to  a  defendant  in  custody  of  his  bail  as  well  as  to  a  defend- 
ant in  jail.18  The  conveyance  required  of  the  defendant  is  to  be 
made  to  the  officer  making  the  arrest,  or,  if  for  any  reason  it  can- 
not be  made  to  him,  then  to  such  officer  as  the  court  or  judge 
may  direct.  The  interrogatories,  answers,  and  report  of  the  com- 
missioner are  to  be  returned  to  the  court  in  which  the  case  is 
pending,  and  filed  with  the  papers  in  such  case,  and  the  court 
may  make  such  order  as  it  may  deem  right  as  to  the  sale  and 
proper  application  of  the  estate  conveyed  and  delivered.19 

§  371.    Appeal  and  error. 

A  non-resident  defendant  who  has  not  appeared  nor  been 
served  with  process  is  given  a  limited  time  within  which  to  ap- 
ply to  the  court  to  set  aside  any  order  made  to  his  prejudice  and 
to  rehear  the  case  de  novo?®  and  he  cannot  appeal  until  after 

17.  Code,  §  2995. 

18.  Levy  v.  Arnsthall,  10  Gratt.   641. 

19.  Code,   §  2996. 

20.  Section  2986  of  the  Code  is  as  follows:    "If  a  defendant,  against 
whom,    on    publication,   judgment    or    decree    is    rendered   under    any 
such   attachment,    or   his   personal    representative,   shall    return    to   or 
appear  openly  in   this   State,   he  may,  within   one  year  after  a   copy 
of  such  judgment  or  decree  shall  be  served  on  him  at  the  instance 
of  the  plaintiff,  or  within  five  years  from  the  date  of  the  decree  or 
judgment,   if  he   be  not  so  served,  petition  to   have  the  proceedings 
reheard.     On  giving  security  for  costs,  he  shall  be  admitted  to  make 
defence  against  such  judgment  or  decree,  as  if  he  had  appeared  in 
the  case  before  the  same  was  rendered,  except  that  the  title  of  any 
bona  fide  purchaser  to  any  property,  real  or  personal,  sold  under  such 
attachment,  shall  not  be  brought  in  question  or  impeached.     But  this 


732  ATTACHMENTS  §    371 

such  application  has  been  made  and  decided.21  But  it  is  pro- 
vided by  the  statute  that  this  right  to  a  rehearing  shall  not  apply 
to  any  case  "in  which  the  petitioner  or  his  decedent  was  served 
with  a  copy  of  the  attachment,  or  with  process  in  the  suit  wherein 
it  issued,  more  than  sixty  days  before  the  date  of  the  judgment 
or  decree,  or  to  any  case  in  which  he  appeared  and  made  defence." 
This  provision  of  the  statute  with  reference  to  serving  the  at- 
tachment or  process  sixty  days  before  the  date  of  the  judgment 
or  decree,  however,  refers  only  to  such  a  service  in  the  proceed- 
ings in  the  State,  and  not  to  a  service  out  of  the  State.  Hence, 
if  a  copy  of  the  attachment  or  process  is  sent  outside  of  the  State 
and  served  on  a  non-resident  defendant,  such  service  does  not 
debar  the  defendant  from  making  the  application  for  a  rehearing 
provided  by  the  statute.  Such  service  has  no  greater  effect  than 
an  order  of  publication  duly  published  and  posted.22 

Where  the  right  to  an  attachment  is  the  only  ground  of  juris- 
diction, it  is  a  proceeding  in  rem,  and  the  regularity  of  the  pro- 
ceeding is  jurisdictional  and  must  appear  on  the  face  of  the  record, 
that  is,  the  trial  court  has  no  jurisdiction  of  the  subject  mat- 
ter, if  the  proceeding  be  irregular,  and  objection  on  that  account 
may  be  made  for  the  first  time  in  the  appellate  court.23  Juris- 
diction of  the  subject  matter  of  litigation  is  always  fixed  by  the 
legislature,  and  can  neither  be  changed  by  the  agreement  of  par- 
ties, nor  conferred  by  a  failure  to  object  on  that  account.  Such 
objections  may  always  be  made  for  the  first  time  in  the  appel- 
late court,  and  will  even  be  noticed  by  the  court  ex  officio. 
Hence  when  an  attachment  at  law  is  sought  to  be  sued  out  as 
ancillary  to  an  action  at  law,  the  trial  court  has  no  jurisdiction 
of  the  attachment  at  all  unless  there  is  a  pending  action,  and  the 
objection  that  no  such  action  was  pending  at  the  time  the  attach- 
ment was  sued  out  may  be  made  for  the  first  time  in  the  appel- 

section  shall  not  apply  to  any  case  in  which  the  petitioner,  or  his  de- 
cedent, was  served  with  a  copy  of  the  attachment,  or  with  process  in 
the  suit  wherein  it  issued,  more  than  sixty  days  before  the  date  of 
the  judgment  or  decree,  or  to  any  case  in  which  he  appeared  and 
made  defence." 

21.  Barbee   v.   Pannell,    6    Gratt.    442. 

22.  Anderson  v.  Johnson,  32  Gratt.  558. 

23.  Jones  v.  Anderson,  7  Leigh  308. 


§  371 


APPEAL    AND    ERROR 


733 


late  court.24  If  there  be  judgment  by  default  in  such  case  against 
a  non-resident  who  has  not  appeared  or  been  served  with  proc- 
ess, any  irregularity  in  the  proceedings  may  be  raised  in  the  ap- 
pellate court  for  the  first  time  by  another  defendant  in  the  case, 
or  the  court  may,  of  its  own  motion,  dismiss  the  proceeding  as 
it  is  one  that  is  harsh  towards  the  debtor  and  his  creditors,  and 
the  proceeding  must  show  on  its  face  that  the  requirements  of 
the  statute  have  been  substantially  complied  with.25  But  if  there 
has  been  an  appearance  to  the  merits  by  the  attachment  debtor, 
irregularities  in  the  affidavit  or  other  proceedings  not  noticed  in 
the  trial  court  will  be  deemed  to  have  been  waived.26 

24.  Furst  v.   Banks,  101  Va.  208,  43   S.   E.   360. 

25.  McAllister  v.   Guggenheimer,   91   Va.   317,  21   S.   E.  475. 

26.  Sims  v.  Tyrer,  96  Va.  5,  26  S.  E.  508. 


CHAPTER  XLIV. 
WRITS  of  ERROR. 

§  372.    Difference  between  writs  of  error  and  appeals. 

Appeals. 

Writs  of  error. 

Supersedeas. 

§  373.    Errors  to  be  corrected  in  trial  court. 
§  374.    Jurisdiction  of  the  Court  of  Appeals  of  Virginia. 

Original  jurisdiction. 

Appellate  jurisdiction. 

(1)  Matters  not  merely  pecuniary. 

(2)  Matters  pecuniary. 
§  375.    Amount  in  controversy. 

Virginia  doctrine. 

West  Virginia  doctrine. 

United  States  doctrine. 

General  doctrine. 

Change  in  jurisdictional  amount. 

Aggregate  of  several  claims. 
§  376.    Cross-error  by  defendant  in  error. 
§  377.    Collateral  effect. 
§  378.    Release  of  part  of  recovery. 
§  379.    Reality  of  controversy. 
§  380.    Who  may  apply  for  a  writ  of  error. 
§  381.    Time  within  which  writ  must  be  applied  for. 
§  382.    Application  for  writ  of  error. 

The  record. 

The  petition. 

Notice  to  counsel. 
§  383.    Bond  of  plaintiff  in  error. 
§  384.    Rule  of  decision. 
§  385.    Judgment  of  appellate  court. 

Demurrer. 

Demurrer  to   the   evidence. 

Case  heard'  by  trial  judge  without  a  jury. 

Jury  trial  in  lower  court. 

Divided   court. 
§  386.    Change  in  law. 

§  387.    How  decision  certified  and  enforced. 
§  388.    Finality  of  decision. 
§  389.    Rehearing. 

§  390.    Objections  not  made  in  trial  court. 
§  391.    Putting  a  party  upon  terms. 


§   372   DIFFERENCE  BETWEEN  WRITS  OF  ERROR  AND  APPEALS        735 

§  392.    Appeals  of  right. 

§  393.    Refusal  or  dismissal  of  writ. 

§  394.    Conclusion. 

§  372.    Difference  between  writs  of  error  and  appeals. 

Appeals. — For  practical  purposes,  though  perhaps  not  tech- 
nically accurate,  we  may  say  that,  under  existing  rules  of  prac- 
tice, an  appeal  lies  from  a  lower  to  a  higher  court,  and  is  a  con- 
tinuation of  the  same  case  upon  the  same  evidence  before  the 
higher  tribunal,  and  the  case  is  simply  heard  de  novo  before  the 
higher  tribunal.  It  is  a  rehearing  before  the  higher  court,  with 
no  presumptions  against  the  appellant,  except  in  case  of  doubt, 
where  the  decision  of  the  lower  tribunal  will  be  affirmed.  With 
this  exception,  the  decision  of  the  lower  court  has  no  effect.  An 
appeal  lies  in  a  suit  in  chancery.  The  party  taking  the  appeal  is 
called  the  appellant.  The  defendant  to  the  appeal  is  called  the 
appellee. 

Writs  of  Error. — A  writ  of  error  lies  in  a  common  law  action 
or  criminal  case,  and  is  in  the  nature  of  a  new  suit.  It  is  awarded 
by  a  superior  to  an  inferior  court  of  record,  and  operates  to 
transfer  the  record  of  the  case  (but  nothing  else)  to  the  superior 
court,  where  the  judgment  of  the  inferior  court  is  reviewed. 
Upon  such  review  the  appellate  court  either  affirms  or  reverses 
the  judgment  of  the  lower  court,  and  if  it  reverses,  enters  such 
judgment  as  the  inferior  court  ought  to  have  entered.1  On  a 
writ  of  error,  generally,  only  questions  of  law  are  reviewed. 
In  the  Federal  courts,  and  in  many  of  the  state  courts,  the  find- 
ings of  the  trial  courts  upon  questions  of  fact  are  conclusive.2 

In  Virginia  and  many  other  states  questions  of  fact  may  be 
reviewed,  but  the  verdict  of  a  jury,  or  the  judgment  of  the  trial 
court  on  a  question  of  fact,  will  not  be  reversed  unless  plainly 
contrary  to  the  evidence,  or  without  evidence.  The  party  who 
obtains  a  writ  of  error  is  called  the  plaintiff  in  error;  the  oppos- 
ing party  the  defendant  in  error. 

Superscdeas. — A  supersedeas,  as  used  in  Virginia,  is  altogether 
an  ancillary  process,  addressed  to  the  officer  charged  with  the 

1.  Code,  §  3485. 

2.  Van  Stone  v.  Stillwell,  142  U.  S.  128;  2  Encl.  PI.  &  Pr.  396. 

(rJc  &>  4faffa*£  * '-  ''<^Li  ^e^' 
•( . 


736  WRITS  OF  ERROR  §  372 

/ 

execution  of  the  judgment  of  the  trial  court,  directing  him  to 
supersede  (suspend,  stop)  the  execution  of  the  judgment  of  the 
court  below,  and  also  directing  him  to  summon  the  defendant  in 
error  to  the  appellate  court,  there  to  have  a  rehearing  of  the 
whole  matter.  It  is  simply  an  adjunct  of  an  appeal  or  writ  of 
error  to  stop  the  execution  of  the  decree  or  judgment  of  the 
court  below,  pending  the  hearing  in  the  appellate  court.  It  is  not 
a  substitute  for  a  writ  of  error  as  has  been  stated.3  There  may 
be  an  appeal  or  writ  of  error  with  or  without  a  supersedeas,  but 
with  us  we  have  no  such  independent  proceeding  as  a  superse- 
deas. In  practice,  the  supersedeas  is  never  issued  alone,  but 
always  as  an  ancillary  process.4 

3.  Williams  v.  Bruffy,  102  U.  S.  248. 

4.  Form  of  Writ  of  Error  and  Supersedeas  in  Actual  Use: 
The  Commonwealth  of  Virginia, 

To  the  Sheriff  of  the  County  of  Henrico,  Greeting: — 
We  command  you,  that  from  all  further  proceedings  on  a  judgment 
pronounced  by  the  Circuit  Court  of  the  City  of  Richmond  on  the 
first  day  of  January,  1905,  in  a  suit  in  which  John  Doe  was  Plaintiff, 
and  John  Brown  was  Defendant  you  altogether  supersede,  which 
judgment  before  the  judges  of  our  Supreme  Court  of  Appeals,  in  the 
City  of  Richmond,  for  cause  of  error  in  the  same  to  be  corrected,  on 
the  petition  of  the  said  defendant  we  have  caused  to  come.  We  also 
command  you,  that  you  give  notice  to  the  said  plaintiff  that  he  be  be- 
fore the  judges  of  our  said'  Supreme  Court  of  Appeals,  at  the  City 
aforesaid,  on  the  first  Monday  in  May  next,  then  and  there  to  have  a 
rehearing  of  the  whole  matter  in  the  judgment  aforesaid  contained. 
And  have  then  there  this  writ. 

WITNESS— H.  STEWART  JONES,  Clerk  of  our  said  Supreme 
Court  of  Appeals,  at  Richmond,  this  10th  day  of  February,  1905,  and 
in  the  129th  year  of  the  Commonwealth. 

MEMO. — The  above  writ  of  supersed'eas  is  not  to  be  effectual,  until 
the  petitioner,  or  some  one  for  him  shall  enter  into  bond,  with  suffi- 
cient security  in  the  Clerk's  Office  of  the  said  Circuit  Court,  in  the 
penalty  of  one  thousand  dollars,  conditioned  as  the  law  directs,  and  a 
certificate  of  the  execution  thereof,  together  with  the  name  or  names 
of  the  surety  or  sureties,  shall  be  endorsed  hereon  by  the  Clerk  of  the 
said  court. 

Teste: 

Court  Clerk. 
A  Copy-Teste: 

Court  Clerk. 


§  373  ERRORS  TO  BE  CORRECTED  IN  TRIAL  COURT  737 

The  course  of  appeal  in  Virginia  is  from  the  circuit  and  cor- 
poration, or  city  courts,  to  the  Court  of  Appeals.  Circuit  and  cor- 
poration courts  are  courts  of  co-ordinate  jurisdiction  under  the 
constitution,  and  in  no  case  can  there  be  an  appeal  from  one  to 
the  other.  An  act  of  the  Legislature  conferring  such  right  of 
appeal  would  be  unconstitutional.5 

§  373.    Errors  to  be  corrected  in  trial  court. 

A  judgment  on  confession  is  equal  to  a  release  of  errors,  and 
from  it  no  appeal  lies.6  The  statute  of  jeofails  cures  most  of 
the  defects,  imperfections  or  omissions  in  pleadings  which  could 
not  have  been  regarded  on  demurrer,  or  which  might  have  been 
taken  advantage  of  on  demurrer  but  were  not.7  Clerical  errors 
and  errors  of  fact  may  generally  be  corrected  by  the  trial  court, 
or  if  in  a  circuit  court,  by  the  judge  thereof  in  vacation,  on  mo- 
tion after  reasonable  notice.8 

Upon  a  judgment  by  default  the  court  rendering  such  judg- 
ment, or  the  judge  thereof  in  vacation,  may  on  motion  reverse 
such  judgment  for  any  error  for  which  an  appellate  court  might 
reverse  it,  and  give  such  judgment  or  decree  as  ought  to  have 
been  given.  And  even  when  the  judgment  is  not  by  default,  but 
the  defendant  has  appeared,  if  there  be  any  mistake,  miscalcula- 
tion or  misrecital  of  any  name,  sum,  quantity  or  time,  and  the 
same  is  right  in  any  part  of  the  record  or  proceedings,  or  when 
there  is  a  verdict  or  any  other  writing  whereby  such  judgment 
may  be  safely  amended,  or  if  a  verdict  is  for  more  damages  than 
are  mentioned  in  the  declaration,  such  court,  or  the  judge  thereof 
in  vacation,  may  amend  such  judgment,  according  to  the  truth 
and  justice  of  the  case,  or  the  party  obtaining  the  judgment  may, 
in  the  same  court  at  any  future  term,  by  an  entry  of  record,  or  in 
vacation  by  a  writing  signed  by  him,  attested  by  the  clerk  and 
filed  among  the  papers  of  the  case,  release  a  part  of  the  amount 

5.  Virginia  Constitution  (1902),  §  98;  Watson  v.  Blackstone,  98  Va. 
618,  38  S.  E.  939. 

6.  Code,  §  3448. 

7.  Code,  §  3449. 

8.  Code,  §  3447. 

—47 


738  WRITS  OF  ERROR  §  374 

of  his  judgment,  and  such  release  shall  have  the  effect  of  an 
amendment  and  make  the  judgment  operate  only  for  what  is  not 
released.  "Every  motion  under  this  section  shall  be  after  rea- 
sonable written  notice  to  the  opposite  party,  his  agent  or  attorney 
in  fact  or  at  law,  and  shall  be  within  three  years  from  the  date 
of  the  judgment."9  This  section  does  not  apply  to  errors  of 
judgment  where  there  has  been  an  appearance.  These  are  final 
after  the  adjournment  of  the  term  at  which  the  judgment  is 
entered,  and  not  subject  to  be  reopened  by  the  trial  court.10  If 
the  error  be  clerical,  and  there  be  a  writing  in  the  record  by 
which  it  may  be  safely  corrected,  the  court  may  enter,  in  a  proper 
case,  nunc  pro  tune  orders  in  order  to  show  the  regularity  and 
validity  of  its  proceedings.11  For  errors  of  the  class  which  may 
be  corrected  in  the  trial  court,  no  writ  of  error  lies  from  the  ap- 
pellate court  until  a  motion  has  been  made  and  overruled  in  whole 
or  in  part,  as  above  mentioned,  in  the  trial  court.12  But  "when 
an  appellate  court  hears  a  case  wherein  an  appeal,  writ  of  error 
or  superseded  has  been  allowed,  if  it  appears  that,  either  before 
or  since  the  same  was  allowed,  the  judgment  or  decree  has  been 
so  amended,  the  appellate  court  shall  affirm  the  judgment  or  de- 
cree, unless  there  be  other  error ;  and  if  it  appear  that  the  amend- 
ment ought  to  be,  and  has  not  been  made,  the  appellate  court 
shall  make  such  amendment,  and  affirm  in  like  manner  the  judg- 
ment or  decree,  unless  there  be  other  error."13  It  has  been  sug- 
gested that  the  court  of  appeals  cannot  correct  clerical  errors  in 
its  own  decrees  when  the  application  is  made  after  the  expiration 
of  the  period  for  rehearing.14 

§  374.    Jurisdiction  of  the  Court  of  Appeals  of  Virginia. 

Original  Jurisdiction. — The  jurisdiction  of  the  Court  of  Ap- 

9.  Code,   §   3451. 

10.  Shipman  v.  Fletcher,  91  Va.  473,  22  S.  E.  458. 

11.  Powers  v.  Carter  Coal  Co.,  100  Va.  455,  41  S.  E.  867. 

12.  Code,  §  3452;  Smith  v.  Powell,  98  Va.,  at  page  437,  36  S.  E.  522. 

13.  Code,  §  3452;  Code  W.  Va.  §  4037;  Farmers'  Nat'l  Bank  v.  How- 
ard (W.  Va.,  Oct.  8,  1912),  76  S.  E.  122. 

14.  7  Va.  Law  Reg.  532,  576. 


§   374   JURISDICTION  OF  THE  COURT  OF  APPEALS  OF  VIRGINIA        739 

peals  of  Virginia  is  prescribed  by  the  constitution  and  the  stat- 
utes passed  in  pursuance  thereof.15 

15.  Section  88  of  the  Constitution  (1902)  is  as  follows: 

"The  Supreme  Court  of  Appeals  shall  consist  of  five  judges,  any 
three  of  whom  may  hold  a  court.  It  shall  have  original  jurisdiction 
in  cases  of  habeas  corpus,  mandamus,  and  prohibition;  but  in  all 
other  cases,  in  which  it  shall  have  jurisdiction,  it  shall  have  appellate 
jurisdiction  only. 

"Subject  to  such  reasonable  rules,  as  may  be  prescribed  by  law,  as 
to  the  course  of  appeal,  the  limitation  as  to  time,  the  security  re- 
quired, if  any,  the  granting  or  refusing  of  appeals,  and  the  procedure 
therein,  it  shall,  by  virtue  of  this  Constitution,  have  appellate  juris- 
diction in  all  cases  involving  the  constitutionality  of  a  law  as  being 
repugnant  to  the  Constitution  of  this  State  or  of  the  United  States, 
or  involving  the  life  or  liberty  of  any  person;  and  it  shall  also  have 
appellate  jurisdiction  in  such  other  cases,  within  the  limits  herein- 
after denned,  as  may  be  prescribed'  by  law;  but  no  appeal  shall  be  al- 
lowed to  the  Commonwealth  in  any  case  involving  the  life  or  liberty 
of  a  person,  except  that  an  appeal  by  the  Commonwealth  may  be  al- 
lowed by  law  in  any  case  involving  the  violation  of  a  law  relating  to 
the  state  revenue.  No  bond  shall  be  required  of  any  accused  person 
as  a  condition  of  appeal,  but  a  supersedeas  bond  may  be  required 
where  the  only  punishment  imposed  in  the  court  below  is  a  fine. 

"The  court  shall  not  have  jurisdiction  in  civil  cases  where  the  mat- 
ter in  controversy,  exclusive  of  costs  and  of  interest  accrued  since 
the  judgment  in  the  court  below,  is  less  in  value  or  amount  than  three 
hundred  dollars,  except  in  controversies  concerning  the  title  to,  or 
boundaries  of  land,  the  condemnation  of  property,  the  probate  of  a 
will,  the  appointment  or  qualification  of  a  personal  representative, 
guardian,  committee,  or  curator,  or  concerning  a  mill,  roadway,  ferry, 
or  landing,  or  the  right  of  the  State,  county,  or  municipal  corporation, 
to  levy  tolls  or  taxes,  or  involving  the  construction  of  any  statute, 
ordinance  or  county  proceeding  imposing  taxes;  and,  except  in  cases 
of  habeas  corpus,  mandamus,  and  prohibition,  the  constitutionality  of 
a  law,  or  some  other  matter  not  merely  pecuniary.  After  the  year 
nineteen  hundred  and  ten  the  General  Assembly  may  change  the  ju- 
risdiction of  the  court  in  matters  merely  pecuniary.  The  assent  of 
at  least  three  of  the  judges  shall  be  required  for  the  court  to  deter- 
mine that  any  law  is,  or  is  not,  repugnant  to  the  constitution  of  this 
State  or  of  the  United  States;'  and  if,  in  a  case  involving  the  consti- 
tutionality of  any  such  law,  not  more  than  two  of  the  judges  sitting 
agree  in  opinion  on  the  constitutional  question  involved,  and  the  case 
cannot  be  determined,  without  passing  on  such  question,  no  decision 
shall  be  rendered  therein,  but  the  case  shall  be  reheard  by  a  full  court; 
and  in  no  case  where  the  jurisdiction  of  the  court  depends  solely  upon 


740  WRITS  OF  ERROR  §  374 

It  will  be  observed  upon  reading  the  constitution  and  statutes 
quoted  in  the  margin  that  the  jurisdiction  of  the  Court  of  Ap- 
peals is  for  the  most  part  appellate,  but  that  it  has  original  juris- 

the  fact  that  the  constitutionality  of  a  law  is  involved,  shall  the  court 
decide  the  case  upon  its  merits,  unless  the  contention  of  the  appellant 
upon  the  constitutional  question  be  sustained.  Whenever  the  requi- 
site majority  of  the  judges  sitting  are  unable  to  agree  upon  a  deci- 
sion, the  case  shall  be  reheard  by  a  full  bench,  and  any  vacancy 
caused  by  any  one  or  more  of  the  judges  being  unable,  unwilling,  or 
disqualified  to  sit,  shall  be  temporarily  filled  in  a  manner  to  be  pre- 
scribed by  law." 

For  a  succinct  statement  of  the  differences  between  the  Constitu- 
tions of  1869  and  1902,  see  Mr.  Pollard's  note  to  §  3455  of  Code  of  1904. 

Sections  3454  and  3455  of  the  Code  are  as  follows: 

Sec.  3454:  "Any  person  who  thinks  himself  aggrieved  by  any  judg- 
ment, decree,  or  order  in  a  controversy  concerning  the  title  to  or 
boundaries  of  land,  the  condemnation  of  property,  the  probate  of  a  will, 
the  appointment  or  qualification  of  a  personal  representative,  guard- 
ian, committee,  or  curator,  or  concerning  a  mill,  roadway,  ferry,  wharf, 
or  landing,  or  the  right  of  the  State,  county,  or  municipal  corporation 
to  levy  tolls  or  taxes,  or  involving  the  construction  of  any  statute,  or- 
dinance, or  county  proceeding  imposing  taxes,  or  by  any  final  order, 
judgment,  or  finding  of  the  State  corporation  commission,  irrespec- 
tive of  the  amount  involved,  except  the  action  of  the  said  commission 
in  ascertaining  the  value  of  any  property  or  franchise  of  a  railroad 
or  canal  company;  for  the  purpose  of  taxation  and  assessing  taxes 
thereon,  or  any  person  who  is  a  party  to  any  case  in  chancery 
wherein  there  is  a  decree  or  ord'er  dissolving  an  injunction,  or  re- 
quiring money  to  be  paid,  or  the  possession  or  title  of  property  to  be 
changed,  or  adjudicating  the  principles  of  a  cause,  or  any  person 
thinking  himself  aggrieved  by  the  order  of  a  judge  or  court  refusing 
a  writ  of  quo  warranto,  or  by  the  final  judgment  on  said  writ,  or  by  a 
final  judgment,  decree,  or  order  in  any  civil  case,  may  present  a  pe- 
tition, if  the  case  be  in  chancery,  for  an  appeal  from  the  decree  or 
order;  and  if  not  in  chancery,  for  a  writ  of  error  or  supersedeas  to  the 
judgment  or  order,  except  as  provided  in  section  thirty-four  hundred 
and  fifty-five;  provided,  however,  that  the  Commonwealth  may  take 
an  appeal  from  the  action  of  the  State  corporation  commission  in  all 
cases,  irrespective  of  the  amount  involved." 

Sec.  3455:  "No  petition  shall  be  presented  for  an  appeal  from,  or 
writ  of  error  or  supersedeas  to,  any  final  judgment,  decree,  or  order, 
whether  the  Commonwealth  be  a  party  or  not,  which  shall  have  been 
rendered  more  than  one  year  before  the  petition  is  presented,  except 
as  provided  by  section  thirty-four  of  an  act  relating  to  the  State  cor- 
poration commission,  approved  April  fifteenth,  nineteen  hundred  and 


§   374   JURISDICTION  OF  THE)  COURT  OF  APPEALS  OF  VIRGINIA        741 

diction  in  cases  of  mandamus,  and  prohibition  (except  where  the 
collection  of  public  revenue  is  affected)16  and  of  the  writ  of 
habeas  corpus.  It  has  no  original  jurisdiction  in  cases  of  quo 
ivdrranto.17  In  matters  of  original  jurisdiction  the  amount  in 
controversy  is  wholly  immaterial.18 

The  provision  of  the  constitution  of  1869  that  the  Court  of 
Appeals  shall  have  appellate  jurisdiction  only,  except  in  cases  of 
habeas  corpus,  mandamus  and  prohibition,  did  not  ex  proprio  vig- 
ore  confer  jurisdiction  on  it.  The  exception  simply  invested  the 
court  with  the  capacity  to  receive  original  jurisdiction  in  that 
class  of  cases  in  event  the  Legislature  should  see  fit  to  confer  it, 
and  did  not  of  itself  confer  the  jurisdiction.19  The  language 
of  the  present  constitution  is:  "It  shall  have  original  jurisdiction 
in  cases  of  habeas  corpus,  mandamus  and  prohibition,"  which 
seems  to  be  mandatory  and  plainly  self -executing.20 

Applications  to  the  court  for  the  exercise  of  its  original  juris- 
diction in  issuing  writs  of  mandamus  in  cases  which  might  have 
been  readily  presented  to  inferior  courts  became  so  frequent  as 
to  necessitate  some  regulation  which  would  prevent  the  disturb- 
ance of  the  regular  calling  of  the  docket.  This  led  to  the  adop- 
tion of  the  rule  of  court  set  forth  in  the  margin.21 

three;  nor  to  any  judgment  of  a  circuit  or  corporation  court,  which 
is  rendered  on  an  appeal  from  a  judgment  of  a  justice,  except  in  cases 
where  it  is  otherwise  expressly  provided;  nor  to  a  judgment,  decree, 
or  order  of  any  court  when  the  controversy  is  for  a  matter  less  in  value 
or  amount  than  three  hundred  dollars,  exclusive  of  costs,  unless 
there  be  drawn  in  question  a  freehold  or  franchise  or  the  title  or 
bounds  of  land,  or  the  action  of  the  State  corporation  commission  or 
some  matter  not  merely  pecuniary;  provided,  however,  that  if  the 
final  decree  from  which  an  appeal  is  asked  is  a  decree  refusing  a  bill 
of  review  to  a  decree  rendered  more  than  six  months  prior  thereto, 
no  appeal  from  or  supersedeas  to  such  decree  so  refusing  a  bill  of  re- 
view shall  be  allowed  unless  the  petition  be  presented  within  six 
months  from  the  date  of  such  decree." 

16.  Code,  §  3286. 

17.  \Yatkins  v.  Venable,  99  Va.  440,  39  S.  E.  147. 

18.  Price  v.  Smith,  93  Va.  14,  24  S.  E.  474. 

19.  Prison  Association  v.  Ashby,  93  Va.  667,  25  S.  E.  893. 

20.  Constitution  of  Virginia,  §  88. 

21.  "Applications    addressed  to    this    court  for    the    issue  of    writs 
other  than  the  writ  of  habeas  corpus,  by  virtue  of  its  original  juris- 


742  WRITS  OF  ERROR  §  374 

Appellate  Jurisdiction. — The  appellate  jurisdiction  of  the  court 
may  be,  (1)  in  matters  not  pecuniary,  or,  (2)  in  matters  pe- 
cuniary. 

( 1 )  Matters  Not  Merely  Pecuniary. — Where  the  matter  is  not 
merely  pecuniary  the  amount  in  controversy  is  wholly  immate- 
rial. Matters  not  merely  pecuniary  embrace  controversies  con- 
cerning the  title  to  or  boundaries  of  land,  the  condemnation  of 
property,  the  probate  of  a  will,  the  appointment  or  qualification 
of  a  personal  representative,  guardian,  committee  or  curator, 
controversies  concerning  a  mill,  roadway,  ferry,  wharf  or  land- 
ing, the  right  of  the  state,  county,  or  municipal  corporation  to 
levy  tolls  or  taxes,  controversies  involving  the  construction  of 
any  statute,  ordinance  or  county  proceeding  imposing  taxes, 
any  final  order,  judgment  or  finding  of  the  State  Corporation 
Commission,  irrespective  of  the  amount  involved  (with  a  single 
exception  not  necessary  to  be  here  mentioned),  controversies 
involving  the  constitutionality  of  a  law,  the  refusal  of  a  court 
or  judge  to  grant  a  writ  of  quo  warranto,  and  final  judgments 
on  said  writ.22 

No  appeal,  however,  lies  directly  to  the  Court  of  Appeals  from 
a  judgment  of  a  justice  of  the  peace  for  less  than  $10.00,  al- 
though the  judgment  involves  the  constitutionality  of  a  law.  The 
machinery  provided  for  the  Court  of  Appeals  in  exercising  its 
appellate  jurisdiction  is  applicable  exclusively  to  appeals  from 
decisions  of  courts  of  record,  which  can  furnish  transcripts  of 
the  records  to  be  reviewed.  Provision  is  made  for  appeals  from 
justices  to  circuit  and  corporation  courts  and  thence  to  the 
Court  of  Appeals  in  cases  involving  the  constitutionality  of  a 
law.23 

Although  §  88  of  the  constitution  gives  the  right  of  appeal  to 

diction,  will  be  placed  upon  the  general  docket  as  they  mature,  and 
be  heard  when  reached,  upon  the  regular  call  thereof;  subject,  how- 
ever, to  be  advanced  for  good  cause  shown  in  accordance  with  rule 
six. 

"The  records  shall  be  printed  under  the  supervision  of  the  clerk,  as 
in  other  cases,  and  must  be  submitted  upon  printed  briefs,  unless  the 
court  shall  otherwise  direct."  Rule  XIX,  111  Va.  p.  X. 

22.  Code,  §§  3454,  3455. 

23.  South.  Ry.  Co.  v.  Hill,  106  Va.  501,  56  S.  E.  278. 


I 

§    374    JURISDICTION  OF  THE)  COURT  OF  APPEALS  OF  VIRGINIA         743 

the  Court  of  Appeals  in  controversies  concerning  "the  condem- 
nation of  property,"  it  is  to  be  observed  that  the  power  of 
eminent  domain  is  a  legislative  power  to  be  exercised  by  the 
legislature  as  it  pleases,  subject  only  to  the  constitutional  provi- 
sions that  private  property  shall  not  be  taken  for  public  uses 
without  the  consent  of  the  owner,  except  upon  making  just  com- 
pensation therefor,  nor  shall  the  owner  be  deprived  of  his  prop- 
erty without  due  process  of  law.  But  due  process  of  law  in  this 
connection  only  requires  that  the  power  shall  be  exercised  in  sub- 
ordination to  established  principles.  The  ascertainment  of  dam- 
ages, however,  is  a  judicial  question,  -and  hence  it  is  entirely  com- 
petent for  the  legislature  to  refuse  an  appeal  to  the  Court  of 
Appeals  on  the  question  of  the  right  to  condemn  property,  and 
restrict  the  appeal  entirely  to  the  question  of  the  damages  al- 
lowed. This  is  not  in  contravention  of  §  88  of  the  constitution.24 
If  jurisdiction  is  invoked  on  the  ground  that  a  freehold,  or 
franchise,  or  the  title  or  boundaries  of  land,  or  any  other  matter 
not  merely  pecuniary  is  drawn  in  question,  these  jurisdictional 
matters  must  be  directly  the  subject  of  controversy,  and  not  merely 
incidentally  and  collaterally  involved.25  The  jurisdiction  of  the 
court  must  affirmatively  appear  from  the  record,  and  the  burden  is 
on  the  plaintiff  in  error  to  show  the  existence  of  jurisdiction,  but 
it  does  so  appear  when  the  court  can  see  that  the  judgment  of 
the  lower  court  necessarily  involved  the  constitutionality  of  some 
statute  or  ordinance,  or  drew  in  question  some  right  under  the 
State  or  Federal  constitution.  Any  proceeding  which  necessa- 
rily puts  their  validity  in  issue,  whether  it  be  by  demurrer,  plea, 
instruction  or  otherwise,  is  sufficient  to  give  the  court  jurisdic- 
tion of  the  case.26  But  the  question  of  the  constitutionality  of  a 
statute  must  in  some  way  be  called  in  question  and  decided  in 
the  trial  court.  Error  committed  in  the  construction  and  inter- 
pretation of  a  statute  will  not,  of  itself,  confer  jurisdiction  upon 
the  Court  of  Appeals.  The  constitutionality  of  a  statute  as  dis- 
tinguished from  its  interpretation  is  the  source  of  appellate  ju- 

24.  Wilburn  r.  Raines,  111  Va.  334,  68  S.  E.  993. 

25.  Cook  v.  Daugherty,  99  Va.  590,  39  S.  E.  223. 

26.  Adkins  z>.  Richmond,  98  Va.  91,  34  S.  E.  967. 


744  WRITS  OF  ERROR  §  374 

risdiction.27  In  the  case  of  unlawful  entry  and  detainer  the 
Court  of  Appeals  has  jurisdiction  regardless  of  the  value  of  the 
land,  as  the  case  concerns  the  title  to  land  within  the  meaning  of 
the  constitution.28  It  is  immaterial  that  possession  only  of  land 
is  the  subject  of  controversy.29 

If  the  validity  of  a  deed  of  trust  securing  the  payment  of  less 
than  $300.00  is  assailed,  a  writ  of  error  lies,  as  it  is  a  controversy 
concerning  the  title  to  land,30  though  if  it  is  sought  to  subject 
land,  no  matter  of  what  value,  to  the  payment  of  a  judgment  for 
less  than  $300.00  no  appeal  lies,  as  the  judgment  is  the  matter 
in  controversy,  and  is  for  less  than  $300.00.31  The  right  to  sub- 
ject lands  to  a  tax  or  to  a  judgment  is  not  a  controversy  concern- 
ing the  title  to  land.32  The  right,  however,  of  a  state  to  impose  a 
tax  is  a  franchise,  and  the  amount  is  wholly  immaterial.33  Man- 
damus and  prohibition  are  also  cases  not  pecuniary  in  which  a 
writ  of  error  lies  from  the  Court  of  Appeals  to  an  inferior 
court.34 

No  writ  of  error  lies  in  any  case  at  law  until  after  final  judg- 
ment has  been  rendered  in  the  trial  court.35  An  exception,  how- 
ever, exists  in  West  Virginia,  where  it  is  declared  by  statute 
that,  in  any  civil  case  where  there  is  an  order  granting  a  new 
trial  or  re-hearing,  an  appeal  may  be  taken  from  the  order  with- 
out waiting  for  the  new  trial  or  re-hearing  to  be  had.36 

(2)  Matters  Pecuniary. — Where  the  matter  is  merely  pecun- 
iary, the  amount  in  controversy  must  not  be  less  than  three 
hundred  dollars,  exclusive  of  costs.  Interest  may  be  calculated 

27.  Hulvey  v.  Roberts,  106  Va.  189,  55  S.  E.  585. 

28.  Pannill  v.  Coles,  81  Va.  380;  Rathbon  v.  Ranch,  5  W.  Va.  79. 

29.  Gorman  v.  Steed,  1  W.  Va.  1. 

30.  Sellers  v.  Reed,  88  Va.  377,  13  S.  E.  754. 

31.  Cash  v.  Humphreys,  98  Va.  477,  36  S.  E.  517. 

32.  Florance  v.    Morien,   98   Va.   26,   34   S.    E.    890;    Cash   v.    Hum- 
phreys, supra. 

33.  Staunton  v.  Stout,  86  Va.  32,  10  S.  E.  5. 

34.  Price  v.  Smith,  93  Va.  14,  24  S.  E.  474. 

35.  Code,  §   3454;   Smiley  v.   Provident  Trust   Co.,   106  Va.   787,  56 
S.   E.  738;   Lockridge  v.   Lockridge,   1  Va.   Dec.   61;   Damron  v.   Fer- 
guson, 32  W.   Va.  33,  9   S.   E.  39. 

36.  Code,  W.  Va.,  §  4038,  cl.  9;  Gwynn  v.  Schwartz,  32  W.  Va.  487. 


§    375  AMOUNT  IN  CONTROVERSY  745 

as  a  part  of  the  amount  in  controversy  up  to  the  date  of  the 
judgment  of  the  trial  court,  but  not  later?1  So,  also,  where  it 
is  clear  that  if  the  plaintiff ,  is  entitled  to  recover  at  all  he  is 
entitled  to  recover  interest  on  the  amount  claimed  from  the  time 
his  demand  was  asserted,  and  the  whole  claim  has  been  rejected, 
such  interest,  up  to  the  date  of  rejection,  is  to  be  taken  into  ac- 
count in  ascertaining  the  jurisdiction  of  the  appellate  court.38 

§  375.    Amount  in  controversy. 

Virginia  Doctrine. — The  provision  of  the  Virginia  constitu- 
tion (1902)  allowing  an  appeal  or  writ  of  error  in  certain  cases 
involving  not  less  than  three  hundred  dollars,  is  not  self-execut- 
ing, and  until  the  Legislature  saw  fit  to  confer  it,  the  Court  of 
Appeals  could  not  exercise  such  jurisdiction.39 

Nothing,  perhaps,  in  connection  with  appeals  and  writs  of 
error  has  given  rise  to  so  much  controversy  as  the  meaning  of 
the  term  "amount  in  controversy."  It  is  said  to  be  of  the  same 
import  as  the  term  "matter  in  dispute,"  found  in  the  judiciary 
act  regulating  the  appellate  jurisdiction  of  the  Supreme  Court, 
and  that  the  construction  of  the  two  phrases  has  been  the  same. 
Both  terms  have  been  held  to  mean  the  subject  of  litigation,  the 
matter  for  which  the  suit  is  brought,  and  upon  which  issue  is 
joined,  and  in  relation  to  which  jurors  are  called  and  examined.40 

Courts,  however,  have  not  agreed  upon  the  proper  meaning 
of  the  term,  and  the  decisions,  even  of  the  same  courts,  have  not 
always  been  harmonious.  The  Court  of  Appeals  of  Virginia  has 
said,  in  a  number  of  cases,  that,  where  the  plaintiff  appeals,  the 
amount  claimed  by  him  in  his  declaration  in  the  court  below  is 
the  matter  in  controversy  as  to  him,  although  the  judgment  be 
for  less,  or  for  the  defendant ;  but  where  the  defendant  -appeals, 
the  amount  in  controversy  as  to  him  is  the  judgment  at  its  date.41 

37.  Gage  v.  Crockett,  27  Gratt.  735. 

38.  Herring  v.  Ches.  &  W.  R.  Co.,  101  Va.  778,  45  S.  E.  32.     See, 
also,  Sanger  v.  Ches.  &  O.  R.  Co.,  102  Va.  86,  45  S.  E.  750. 

39.  Flanary  v.   Kane,  102  Va.  547,  46  S.   E.  312,  681. 

40.  Harman  v.  City  of  Lynchburg,  33  Gratt.  37;  Lee  v.  Watson,  1 
Wall.  337. 

41.  Gage  v.   Crockett,  27  Gratt.  735;    Campbell  v.   Smith,  32  Gratt. 
288;   Harman  v.   City  of  Lynchburg,  33   Gratt.   37. 


746  WRITS  OF  ERROR  §  375 

These  cases  were  all  correctly  decided  on  their  merits,  but  in  no 
one  of  them  was  the  statement  as  to  the  plaintiff's  right  of  ap- 
peal, now  under  discussion,  necessary  to  the  decision  of  the  case ; 
and  in  a  later  case,  although  the  same  statement  is  repeated  as 
to  the  plaintiff's  right  of  appeal,  it  is  said  that  this  rule  is  not 
universal.  Judge  Staples,  speaking  for  the  court,  after  laying 
down  the  above  rule,  says:  "Upon  examining  these  cases  it  will 
be  found  they  do  not  lay  down  the  rule  universally,  but  subject 
to  exceptions  and  modifications  which  must  be  applied  from  time 
to  time  as  new  cases  arise."42  He  then  proceeds  to  discuss  the 
facts  of  the  case  under  consideration  and  holds  that  where,  on 
a  money  demand,  the  difference  between  the  amount  decreed  to 
be  paid  in  the  court  below,  and  the  amount  of  the  claim  asserted 
by  the  plaintiff  in  that  court  is  not  sufficient  to  give  the  Court  of 
Appeals  jurisdiction,  his  appeal  should  be  dismissed. 

As  to  the  plaintiff,  it  has  been  held  that  the  amount  in  contro- 
versy as  to  him  is  the  difference  between  the  amount  claimed  on 
the  date  of  the  decree  appealed  from,  and  the  amount  for  which 
a  decree  was  rendered  in  his  favor.43  This  question  arose  in  a 
chancery  suit,  but  the  same  rule  would  apply  to  an  action  at  law. 
This  principle  has  been  very  recently  applied  in  another  case 
arising  in  chancery.  The  question  was  whether  or  not  the  holder 
of  a  certified  check  on  a  suspended  bank  had  accepted  it  as  pay- 
ment of  a  debt.  The  trial  court  held  that  it  had  been  so  accepted. 
The  check  was  for  three  hundred  dollars,  and  the  receivers  of 
the  bank  had  declared  dividends  to  the  amount  of  $112.50  (which 
the  holder  declined  to  accept),  leaving  a  balance  still  due  on 
the  check  of  $187.50.  The  holder  of  the  certified  check  appealed, 
but  the  appeal  was  dismissed  on  the  ground  that  the  amount  in 
controversy  in  the  Court  of  Appeals  was  the  amount  of  loss  sus- 
tained by  the  holder  of  the  check,  which  was  measured  by  the 
amount  of  the  check  less  any  dividends  which  had  been  or  might 
be  declared  out  of  the  assets  of  the  bank.44  The  cases  above 
cited  are  believed  to  state  the  doctrine  in  Virginia  as  to  the  plain- 

42.  Bachelder   v.    Richardson.    75    Va.    835. 

43.  Ware  r.  Bldg.  Asso.,  95  Va.  680,  29  S.  E.  744.     See,  also,  Mar- 
chant  v.  Healy.  94  Va.  614,  27  S.  E.  464. 

44.  Lamb  v.  Thompson,  112  Va.  134,  70  S.  E.  507. 


§    375  AMOUNT   IX  CONTROVERSY  747 

tiff's  right  to  a  writ  of  error  though  it  is  admitted  that  there  are 
some  cases  which  probably  cannot  be  reconciled  with  them. 

If  the  defendant  claims  and  is  allowed  a  set-off  which  exceeds 
the  jurisdictional  amount  of  the  court,  the  amount  in  contro- 
versy, as  to  the  plaintiff,  is  the  amount  allowed.  Thus,  where 
the  plaintiff  claimed  three  hundred  and  fifteen  dollars  (the  ju- 
risdictional amount  of  the  court  then  being  five  hundred  dol- 
lars), but  the  defendant  claimed  a  set-off  for  five  hundred  and 
sixty  dollars,  and  the  trial  court  gave  a  judgment  against  plain- 
tiff for  the  amount  of  the  set-off,  to  wit :  five  hundred  and  sixty 
dollars,  subject  to  plaintiff's  claim  of  three  hundred  and  fifty 
dollars,  it  was  held  that  an  appeal  would  lie  at  the  instance  of  the 
plaintiff.  In  the  course  of  the  opinion  it  is  said :  "It  is  true  that 
Bunting  (the  plaintiff)  can  satisfy  the  decree  by  the  payment  of 
a  less  sum  than  five  hundred  dollars,  but  it  is  also  true  that  he 
is  aggrieved  by  the  full  amount  of  the  set-off  established  against 
him."45  Here  the  "amount  in  controversy"  consisted  of  the  set- 
off  allowed  against  the  plaintiff.  In  the  same  case,  if  the  de- 
fendant's set-off  had  been  wholly  disallowed,  he  would  have 
been  entitled  to  an  appeal ;  or,  if  the  plaintiff's  claim  had  been 
wholly  disallowed,  and  the  defendant's  set-off  had  been  allowed 
only  to  the  extent  of  two  hundred  dollars,  the  amount  in  contro- 
versy, as  to  the  plaintiff,  would  have  been  the  amount  of  his 
claim  disallowed  plus  the  amount  allowed  on  defendant's  set- 
off,  thus  making  five  hundred  and  fifteen  dollars.  A  set-off  is 
equivalent  to  an  action,  and  where  the  amount  of  a  set-off  dis- 
allowed by  the  trial  court  exceeds  three  hundred  dollars,  the 
"amount  in  controversy"  is  within  the  jurisdiction  of  the  Court 
of  Appeals.46 

Usually,  if  a  party  is  not  satisfied  with  a  verdict  or  judgment 
of  a  trial  court,  the  objection  must  be  made  in  some  way  in  the 
trial  court,  but  attention  is  called  to  a  Virginia  case  in  which  no 
such  objection  was  made,  and  yet  upon  writ  of  error  the  losing 
partv  was  allowed  to  take  advantage  of  alleged  irregularities 
of  the  judgment  of  the  trial  court.  The  plaintiff  sued  for  one 
thousand  dollars.  There  was  a  special  verdict  finding  condi- 

45.  Bunting  r.  Cochran.  99  Va.  558,  39   S.  E.  229. 

46.  X.  &  W.   Ry.  Co.  z'.   Potter.   110  Va.  427,  66  S.   E.  34. 


748  WRITS  OF  ERROR  §  375 

tionally  for  the  plaintiff  the  sum  of  $242.25.  Upon  this  special 
verdict  the  trial  court  rendered  judgment  for  the  defendant,  but 
no  objection  was  made  to  the  verdict,  nor  was  any  motion  made 
for  a  new  trial,  but  the  plaintiff  obtained  a  writ  of  error,  and  it 
was  held  that  the  court  had  jurisdiction.  It  was  evident  that  the 
plaintiff  was  willing  to  accept  judgment  for  $242.25,  and  hence 
made  no  objection  to  the  verdict.  This,  then,  would  seem  to 
have1  been  the  matter  in  controversy,  and  that  the  Court  of  Ap- 
peals had  no  jurisdiction,  but  it  was  held  otherwise  and  a  new 
trial  was  ordered.  With  deference,  it  is  submitted  that  the  con- 
clusion was  wrong.47 

West  Virginia  Doctrine. — The  amount  in  controversy,  so  far 
as  the  plaintiff  is  concerned,  is  the  amount  really  claimed  by 
him,  which  amount  is  to  be  ascertained  according  to  the  cir- 
cumstances of  each  case  from  the  pleadings,  the  evidence  before 
the  court  or  jury,  or  from  affidavits,  though  it  has  been  held 
that,  generally,  where  the  plaintiff  appeals,  the  amount  claimed 
by  him  in  his  declaration  in  the  court  below  is  the  amount  in 
controversy  as  to  him,  although  the  judgment  may  be  for  less 
or  for  the  defendant.48  Again  it  has  been  held  that  the  amount 
claimed  by  the  plaintiff  in  his  declaration  or  bill,  or  by  a  defend- 
ant in  his  plea  or  answer  or  set-off,  and  not  the  amount  found 
due  to  either,  is  the  test  of  the  right  to  appeal;49  and  in  another 
case,50  that  in  determining  the  question  of  jurisdiction  in  an  ac- 
tion for  the  recovery  of  money  on  contract,  the  amount  claimed 
in  the  summons  must  determine  jurisdiction.  The  last  two  cases 
cited  in  the  margin  seem  to  be  in  conflict  with  earlier  cases  de- 
ciding that  jurisdiction  is  to  be  determined  by  the  amount  in 
controversy  in  the  appellate  court.51  Where  the  defendant  ap- 
peals, generally,  the  amount  of  the  judgment  against  him  de- 
termines the  jurisdiction  of  the  appellate  court.52  But  where 

47.  McCrowell  v.  Burson,  75  Va.  290.     See,  also,  Rhule  v.  Seaboard 
Ry.  Co.,  102  Va.  343,  46  S.  E.  331. 

48.  Marion  v.  Craig,  18  W.  Va.  559. 

49.  Faulconer  v.  Stinson,  44  W.  Va.  546,  29  S.  E.  1011. 

50.  Case  v.  Sweeny,  47  W.  Va.  638,  35  S.  E.  853. 

51.  Rhymer  v.   Hawkins,   18  W.  Va.  309;   Grafton   R.   Co.  v.   Fore- 
man, 24  W.  Va.  662. 

52.  Marion  v.  Craig,  18  W.  Va.  559. 


§    375  AMOUNT  IN  CONTROVERSY  749 

the  defendant  claims  a  set-off  above  the  jurisdictional  amount 
of  the  appellate  court,  and  the  set-off  is  wholly  disallowed,  the 
defendant  may  appeal.53 

United  States  Doctrine. — There  have  been  many  decisions  by 
the  Supreme 'Court  of  the  United  States,  and  they  are  apparently 
not  harmonious.  In  Hilton  v.  Dickinson,  108  U.  S.  165,  the 
previous  cases  are  all  reviewed  by  Chief  Justice  Waite,  and  the 
conclusion  reached  that  the  "matter  in  dispute"  means  the  mat- 
ter in  dispute  in  the  'appellate  court,  which  is  the  difference  be- 
tween the  amount  claimed  and  the  judgment  rendered.  If  the 
defendant  claims  to  defeat  the  plaintiff's  demand,  the  matter  in 
dispute  as  to  him  is  the  judgment  against  him.  If  the  judgment 
is  for  the  defendant,  generally,  the  matter  in  dispute  as  to  the 
plaintiff  is  the  amount  claimed  by  him  in  the  body  of  the  decla- 
ration, and  not  merely  the  damages  alleged  in  the  prayer  for 
judgment  at  its  conclusion.  If  a  counter  claim  is  set  up  by  the 
defendant,  the  matter  in  dispute  as  to  him  is  the  difference  be- 
tween the  counter  claim  and  the  judgment,  and  as  to  the  plaintiff 
the  difference  between  the  amount  claimed  and  the  recovery. 
In  other  words,  it  is  the  real  difference  in  each  case  between 
what  the  party  actually  claims  and  the  amount  accorded  him. 

General  Doctrine. — It  is  impossible  to  reconcile  the  decisions 
made  upon  this  subject,  but  the  views  expressed  by  Chief  Jus- 
tice Waite,  in  the  case  last  mentioned,  and  the  similar  conclusion 
reached  by  the  Court  of  Appeals  of  Virginia  in  some  of  the 
cases  hereinbefore  cited,  seem  to  accord  with  justice,  and  to  be 
but  a  fair  and  reasonable  interpretation  of  the  words  used.  No 
generalization  can  be  made  which  will  fit  the  holdings  in  the 
different  jurisdictions,  and  the  decisions  of  the  particular  States 
will  have  to  be  consulted  whenever  the  question  arises.  It  is 
said  that  in  some  States  the  amount  in  controversy  is  the  amount 
claimed  in  the  lower  court,  no  matter  who  appeals,  though  with 
some  conflict  of  decisions  in  the  same  courts.  Under  this  head 
are  classed  California,  Connecticut,  Iowa,  Louisiana,  Massa- 
chusetts and  Washington.54  In  Illinois  and  Wisconsin  it  is  said 

53.  Dickey  v.  Smith,  42  W.  Va.  805,  26  S.  E.  373;  Faulconer  v.  Stin- 
son,  44  W.  Va.  546,  29  S.   E.   1011. 

54.  1   Encl.  PI.  &  Pr.  733. 


750  WRITS  OF  ERROR  §  375 

that  the  right  of  appeal  seems  to  be  determined  by  the  amount 
of  recovery,  no  matter  who  appeals.  On  principle  it  would  seem 
that  the  amount  in  controversy  means  in  controversy  in  the  ap- 
pellate court  and  not  in  the  trial  court,  and  this  amount  is  meas- 
ured by  the  difference  between  what  was  claimed  by  the  party 
in  the  trial  court  and  the  amount  allowed  him  in  that  court ;  and, 
in  ascertaining  the  amount  claimed  in  the  trial  court,  we  should 
look  (in  case  of  the  plaintiff)  to  the  amount  claimed  by  him  in 
the  body  of  the  declaration  and  not  merely  to  the  ad  damnum 
clause.  The  plaintiff  in  error  is  not  making  any  complaint  of 
what  he  has  received,  but  of  what  he  has  not  received,  and  so 
much  of  what  he  claimed  in  the  trial  court  as  was  not  allowed 
him  in  that  court  represents  the  matter  in  controversy  in  the 
appellate  court.55 

Usually  it  is  incumbent  on  the  plaintiff  in  error  to  show  af- 
firmatively that  the  amount  in  controversy  is  within  the  juris- 
dictional limit  of  the  court,  but  where  the  matter  is  pecuniary, 
and  the  amount  awarded  in  the  trial  court  is  in  excess  of  such 
jurisdictional  limit,  and  it  is  claimed  to  have  been  reduced  by 
payments,  the  burden  is  on  the  defendant  in  error  to  show  that 
fact.58  If  the  record  in  the  trial  court  does  not  show  the  value 
of  the  thing  in  controversy,  and  the  form  of  the  proceeding  does 
not  require  it  to  be  shown,  it  may  be  shown  by  affidavits  filed  in 
the  appellate  court.57 

Change  in  Jurisdictional  Amount. — In  the  absence  of  some 
exception  in  the  statute,  the  right  of  appeal  depends  upon  the 
law  in  force  at  the  time  the  appeal  is  granted,  and  not  when  the 
judgment  was  rendered.  The  right  of  appeal  is  regarded  as  a 
privilege,  and  not  as  a  vested  right.  A  new  statute  increasing 
the  pecuniary  limit  of  the  jurisdiction  of  the  appellate  court  does 
not  apply  to  writs  of  error  which  have  been  sued  out  and  per- 

55.  Hilton  v.   Dickinson,   108   U.   S.   165;    Batchelder  v.   Richardson, 
75  Va.  835;    Marchant    v.    Healy,  94    Va.  614,    27  S.    E.  464;  Ware    v. 
Building  Asso.,  95  Va.  680,  29  S.  E.  744;  Lamb  v.  Thompson,  112  Va. 
134,  70  S.  E.  507. 

56.  Williamson  v.  Payne,  103  Va.  551,  49  S.  E.  660. 

57.  Hannah  v.  Bank,  53  W.  Va.  82,  44  S.  E.  152;  Lamb  v.  Thomp- 
son, 112  Va.  134,  70  S.  E.  507. 


§   376  CROSS-ERROR  BY  DEFENDANT  IN  ERROR  751 

fected  before  the  new  law  takes  effect,  but  does  apply  to  cases 
arising  before  the  new  law  went  into  effect  where  the  application 
for  the  writ  of  error  is  made  afterwards.58 

Aggregate  of  Several  Claims. — It  often  happens  in  equity  that 
several  independent  claims  of  different  creditors  are  asserted 
against  a  common  debtor — for  instance,  against  an  executor, 
administrator,  or  a  trustee — though  such  a  state  of  facts  can 
seldom  be  presented  at  law.  If  there  is  no  joint  interest,  or  com- 
munity of  interest  between  them,  but  each  relies  upon  an  inde- 
pendent contract  which  he  has  the  right  to  enforce  without  re- 
gard to  the  other,  and  the  interest  of  no  one  amounts  to  as  much 
as  $300.00  (the  minimum  jurisdictional  amount),  no  one  of  them 
can  appeal  from  an  adverse  decree;  nor  can  there  be  a  joint  ap- 
peal, although  the  aggregate  of  the  several  claims  rejected  ex- 
ceeds $300.00.59  But  when  the  claim  of  several  persons  to  take 
as  legatees  under  a  will  is  resisted  by  the  executor,  and  there 
are  separate  decrees  in  their  favor,  the  "amount  in  controversy" 
in  the  appellate  court,  as  to  the  executor,  is  the  aggregate  amount 
of  the  decrees  against  him,  although  no  one  of  them  would  be 
sufficient  to  give  the  court  jurisdiction.60  So,  also,  where  there 
are  no  assets  in  the  hands  of  a  personal  representative  of  a  de- 
ceased debtor  out  of  which  to  pay  a  debt  against  the  decedent's 
estate,  it  is  proper  to  decree  against  each  legatee  or  devisee  for 
his  proportion  of  the  debt.  Such  a  decree  is,  in  effect,  a  decree 
against  the  decedent's  estate,  and  if  the  aggregate  amount  of 
such  decrees  exceed  the  minimum  jurisdictional  sum  of  the 
appellate  court,  an  appeal  lies  on  behalf  of  such  legatees  or 
devisees.61 

§  376.    Cross -error  by  defendant  in  error. 

Rule  VIII,  of  the  Rules  of  the  Court  of  Appeals  declares: 
"In  any  appeal,  writ  of  error,  or  supersedeas,  if  error  is  per- 

58.  McGruder  v.  Lyons,  1  Gratt.  233;  Allison  v.  Wood,  104  Va.  765, 
52  S.   E.  559. 

59.  White  v.  Bldg.  Asso.,  96  Va.  270,  31  S.  E.  20;  Oilman  v.  Ryan, 
95  Va.  494,  28  S.  E.  875. 

60.  Ginter  v.  Shelton,  102  Va.  185,  45  S.  E.  892;  Hicks  v.  Roanoke 
Brick  Co.,  94  Va.  741,  27  S.  E.  596,  citing  many  previous  cases. 

61.  Smith  v.  Moore,  102  Va.  260,  46  S.  E.  326. 


752  WRITS  OF  ERROR  §   376 

ceived  against  any  appellee  or  defendant,  the  Court  will  con- 
sider the  whole  record  as  before  them,  and  will  reverse  the  pro- 
ceedings, either  in  whole  or  in  part,  in  the  same  manner  as  they 
would  do  were  the  appellee  or  defendant  to  bring  the  same  be- 
fore them,  either  by  appeal,  writ  of  error,  or  supersedeas,  unless 
such  error  be  waived  by  the  appellee  or  defendant,  which  waiver 
shall  be  considered  a  release  of  all  error  as  to  him."62  It  has 
been  held,  in  construing  this  rule,  that  the  whole  record  is 
brought  up  on  writ  of  error  or  appeal,  and  that  the  plaintiff  in 
error -cannot  select  simply  such  matters  as  are  prejudicial  to 
him  and  exclude  the  court  from  the  consideration  of  other  mat- 
ters favorable  to  him,  but  that  the  latter  may  be  assigned  by  the 
defendant  on  cross-error.63  But  if  the  matter  is  merely  pe- 
cuniary, it  must  amount  to  at  least  the  minimum  jurisdictional 
amount  of  the  court  in  order  to  enable  the  defendant  to  assign 
cross-error.64  Although  the  amount  of  the  defendant's  claim 
was  less  than  the  minimum  jurisdictional  amount  of  the  appel- 
late court  at  the  time  the  claim  was  rejected  by  the  trial  court, 
yet,  if  the  adverse  party  appeals  at  a  later  time,  and  the  claim 
of  the  defendant  at  the  time  of  the  hearing  in  the  Court  of  Ap- 
peals has,  by  reason  of  the  accrual  of  interest,  increased  to  a 
sum  equal  to  the  minimum  jurisdictional  amount  of  the  Court 
of  Appeals,  the  defendant  may  in  that  case  assign  cross-error 
for  the  rejection  of  his  claim  by  the  trial  court.65  If  both  plain- 
tiff and  defendant  appeal,  and  the  plaintiff  either  dismisses  his 
appeal  or  fails  to  perfect  it,  he  may,  on  the  appeal  taken  by  the 
defendant,  assign  as  cross-error  the  rulings  of  the  trial  court  to 
his  prejudice  which  he  had  set  up  in  his  own  appeal.66  The  rule 
of  court  allowing  cross-error  to  be  assigned,  however,  cannot 
be  made  the  means  of  compelling  the  court  to  decide  questions 
not  necessarily  involved  on  the  appeal  (and  which,  therefore,  are 

62.  ill  Va.  p.  VII. 

63.  Gaines  v.  Merryman,  95  Va.  660,  29  S.  E.  738. 

64.  Wilson  v.  Wilson,  93  Va.  546,  25  S.  E.  596. 

65.  Osborne  v.  Big  Stone  Gap  Colliery  Co.,  96  Va.  58,  30  S.  E.  446. 

66.  Nicholson  v.   Gloucester   Charity   School,   93   Va.    101,   24   S.    E. 
899. 


§§  377-378  RELEASE  OF  PART  OF  RECOVERY  753 

moot  questions)  merely  for  the  guidance  of  the  trial  court  in  a 
future  trial  of  the  case.67 

§  377.    Collateral  effect. 


the  effect  of  the  judgment  in  a  particular  case  is  to 
draw  in  question  the  validity  of  a  claim  to  an  amount  of  greater 
value  than  the  jurisdictional  sum  of  the  appellate  court,  although 
the  amount  involved  in  the  present  action  is  not  as  large  as  the 
minimum  required,  as  where  a  subscription  of  over  three  hun- 
dred dollars  of  stock  is  drawn  in  question  in  an  action  on  quotas 
of  less  than  three  hundred  dollars,  or  where  the  validity  of  a 
bond  for  a  larger  amount  is  drawn  in  question  in  an  action  on  a 
coupon  cut  therefrom  for  a  smaller  amount,  it  is  held  in  Vir- 
ginia that  a  writ  of  error  will  lie,  if  it  appears  that  the  judgment 
conclusively  settles  the  rights  of  the  parties  as  to  the  larger 
amount,68  but  the  contrary  is  held  in  the  Supreme  Court  of  the 
United  States.69 

§  378.    Release  of  part  of  recovery. 

If  the  judgment  against  the  defendant  is  within  the  jurisdic- 
tional amount  of  the  appellate  court,  it  is  held  by  the  weight  of 
authority  that  the  defendant  cannot  be  deprived  of  his  writ  of 
error  by  a  release  of  part  of  the  recovery  by  the  plaintiff,  as  it 
is  said  this  would  be  in  fraud  of  the  jurisdiction  of  the  appellate 
court.70  A  somewhat  different  view,  however,  is  taken  by  the  Su- 
preme Court  of  the  United  States,  where  it  is  held  that  such  a  re- 
lease made  by  the  plaintiff,  with  the  consent  of  the  court,  after 
verdict  but  before  judgment,  is  valid,  and  will  deprive  the  appel- 

67.  Singer  Mfg.  Co.  v.  Bryant,  105  Va.  403,  54  S.  E.  320. 

68.  Stuart  v.  Valley  Ry.  Co.,  32  Gratt.   146;  Campbell  v.  Smith,  32 
Gratt.  288;  Elliott  v.  Ashby,  104  Va.  716,  52  S.  E.  383;  Inter.  Harvester 
Co.  v.  Smith,  105  Va.  683,  54  S.  E.  859. 

69.  Elgin  v.  Marshall,  105  U.  S.  578;  1  Ency.  PI.  &  Pr.  718,  citing 
numerous  other  cases  from  the  Supreme  Court  of  the  United  States, 
and  cases  from  Illinois  and  Washington  to  the  same  effect. 

70.  Hansbrough  v.  Stinnett,  22  Gratt.  593;  1  Encl.  PI.  &  Pr.  709-10. 

—48 


WRITS  OF  ERROR  §§    379-380 

late  court  of  jurisdiction.71  It  was  said  that  it  was  in  the  discre- 
tion of  the  trial  court  whether  to  permit  the  reduction  or  not,  and 
that  it  would  not  permit  it  if  in  fraud  of  jurisdiction  of  an  ap- 
peal, and  that,  having  allowed  it,  it  must  stand.  Illinois,  Penn- 
sylvania and  South  Carolina  are  said  to  hold  the  same  doctrine.72 

§  379.    Reality  of  controversy. 

Every  writ  of  error  must  be  for  the  trial  of  an  actual  con- 
troversy. The  appellate  court  will  not  sit  to  hear  mere  moot 
questions.  There  must  be  actual  parties  and  a  real  controversy. 
If  a  prisoner  has  escaped  pending  a  writ  of  error,  the  court  will 
not  hear  the  writ,  unless  within  a  reasonable  time  the  prisoner 
returns  into  custody.73  So,  if  the  court  discovers  that,  from 
lapse  of  time  or  otherwise,  the  controversy  is  wholly  ended  and 
terminated,  and  nothing  but  a  mere  moot  question  is  left  for 
decision,  it  will  dismiss  the  writ  of  error.74  Thus,  where  the 
appellate  court  was  asked  to  decide  whether  or  not  a  stenographer 
could  use  his  notes  made  at  a  former  trial  as  a  record  of  a  past 
recollection,  and  it  appeared  that  such  notes  had  in  fact  been  in- 
troduced on  the  trial  without  objection,  the  court  refused  to  pass 
on  the  question,  as  it  was  not  in  issue.75  No  agreement  of  coun- 
sel can  affect  the  real  amount  in  controversy  so  as  to  give  the 
court  jurisdiction  where  it  would  otherwise  not  have  it.76 

§  380.  Who  may  apply  for  a  writ  of  error. 

To  entitle  a  person  to  apply  for  a  writ  of  error  he  must  be  a 
party  to  the  cause  and  aggrieved  by  the  judgment.77  Not  only 
so,  but  he  must  present  a  petition  for  a  writ  of  error  in  order  to 
become  a  plaintiff  in  error.  A  party  cannot  become  a  plaintiff 

71.  Thompson  v.  Butler,  95  U.  S.  694.     It  was  said  in  the  same  case, 
however,  that  if  the  release  had  been  made  after  judgment  a  very 
different  question  would  have  been  presented. 

72.  1  Encl.  PI.  &  Pr.  710. 

73.  Leftwich  v.  Commonwealth,  20  Gratt.  716. 

74.  Franklin  v.  Peers,  95  Va.  602,  25  S.  E.  321;  Hamer  v.  Common- 
wealth, 107  Va.  636,  59  S.  E.  400;  Tennessee  v.  Condon,  189  U.  S.  64. 

75.  Roanoke  Ry.  Co.  v.  Young,  108  Va.  783,  62  S.  E.  961. 

76.  Leigh  v.  Ripple,  27  W.  Va.  211. 

77.  Rowland  v.   Rowland,   104  Va.   673,  52  S.   E.   366. 


§    380  WHO  MAY  APPLY  FOR  A  WRIT  OF  ERROR  755 

in  error  by  virtue  of  a  petition  in  the  name  of  one  person  on 
behalf  of  himself  and  a  number  of  others  whose  names  are  not 
mentioned.  The  only  plaintiff  in  error  in  such  a  case  is  the  per- 
son whose  name  appears  in  the  petition.  In  order  to  become  a 
party,  the  person  must  unite  by  name  in  the  petition  for  a  writ 
of  error.78  So,  also,  appellate  proceedings  must  be  between  liv- 
ing persons,  either  in  a  personal  or  representative  capacity.  If 
a  party  dies  after  judgment  in  a  trial  court,  and  a  writ  of  error 
is  desired,  it  must  be  applied  for  in  the  name  of  his  representa- 
tive. If  applied  for  in  the  name  of  a  party  who  is  dead,  and 
this  fact  is  disclosed,  the  writ  will  be  dismissed,  though  a  new 
writ  may  be  applied  for  by  his  representative  if  not  too  late.79 
So,  also,  there  must  be  a  party  on  the  other  side,  on  whom  proc- 
ess can  be  served,  else  there  can  be  no  hearing  of  the  case.80  If 
a  plaintiff  in  the  trial  court  dies  after  judgment  in  his  favor,  the 
judgment  debtor  has  no  authority  to  revive  the  judgment  in  the 
name  of  the  personal  representative  of  the  creditor,  but  should 
apply  for  a  writ  of  error  in  his  own  name  and  set  out  in  his  pe- 
tition the  death  of  the  plaintiff  and  the  qualification  of  his  per- 
sonal representative,  and  process  can  be  served  on  him.81  As 
a  commissioner  of  the  court  is  a  mere  arm  of  the  court,  and  not  a 
party,  he  cannot,  as  such  commissioner,  apply  for  a  writ  of  error 
or  appeal.82 

If  several  are  jointly  bound  by  a  judgment,  one  of  them  it 
seems  may  apply  for  a  writ  of  error  though  the  others  refuse.83 
If,  however,  the  parties  jointly  interested  occupy  the  relation  of 
principal  and  surety,  and  the  defence  be  one  that  is  personal  to 
the  principal,  although  it  may  inure  to  the  benefit  of  the  surety, 
the  surety  cannot  alone  prosecute  a  writ  of  error.84 

78.  Southern  R.  Co.  v.  Glenn,  102  Va.  529,  46  S.  E.  776. 

79.  Booth  v.   Dotson,   93  Va.   233,  24  S.   E.   935;  Jackson  v.   Wick- 
ham,  112  Va.  128,  70  S.  E.  539. 

80.  Watkins  z:  Venable,  99  Va.  440,  39  S.  E.  147. 

81.  Charlottesville  v.  Stratton,  102  Va.  95,  45  S.  E.  737. 

82.  Brown  v.  Howard,  106  Va.  262,  55  S.  E.  682. 

83.  Todd  v.   Daniel,   16  Pet.   521;  Winters  v.   U.   S.,  207   U.   S.   564; 
Flynn  v.  Jackson,  93  Va.  341,  25  S.  E.  1;  Reno's  Ex'or  v.  Davis  and 
wife,    4    Hen.    &    Mun.    283;    Purcell   v.    McCleary,    10    Gratt.    246;    2 
Cyc.  758. 

84.  Kinzie.f.  Riely,  100  Va.  709,  42  S.  E.  872. 


756  WRITS  OF  ERROR  §    381 

§  381.    Time  within  which  writ  of  error  must  be  applied 
for. 

The  statute  in  Virginia  declares  that  no  petition  shall  be  pre- 
sented for  a  writ  of  error  or  supersedeas  to  any  final  judgment 
which  has  been  rendered  more  than  one  year  before  the  petition  is 
presented.85  A  writ  of  error  must,  therefore,  be  applied  for 
within  one  year  from  the  time  the  final  judgment  was  rendered; 
and  a  bond,  if  required,  must  be  given  within  the  same  period. 
The  same  statute  declares  that  "no  appeal  from,  or  supersedeas 
to,  such  decree  so  refusing  a  bill  of  review  shall  be  allowed  un- 
less the  petition  be  presented  within  six  months  from  the  date  of 
such  decree."  It  has  been  held  that  the  six  months  mentioned 
must  be  counted  from  the  actual  date  of  the  decree  appealed 
from,  and  not  from  the  beginning  or 'the  end  of  the  term  at  which 
it  was  rendered  ;86  and,  though  there  is  some  difference  in  the 
language  used,  it  is  presumed  that  the  same  construction  will  be 
placed  upon  the  former  part  of  the  section,  fixing  the  time 
within  which  a  petition  for  a  writ  of  error  must  be  presented, 
that  is,  one  year  from  the  actual  date  on  which  the  judgment  was 
rendered.87  There  is  excluded,  however,  from  the  computation 
the  time  during  which  the  petition  and  transcript  of  record  are 
in  the  hands  of  the  judges  for  consideration  of  the  application, 
but  if  the  writ  be  granted  and  the  papers  returned  to  the  clerk's 
office,  time  begins  to  run  afresh,  and  the  mere  failure  of  the  clerk 
to  open  and  examine  a  box  containing  papers,  in  which  is  the  writ 
of  error,  does  not  affect  the  running  of  the  statute,  which  begins 
to  run  afresh  from  the  actual  receipt  of  the  petition  and  record 
by  the  clerk.88  If,  after  a  writ  of  error  has  been  awarded  it  be 
discovered  that  the  statutory  period  had  expired  before  it  was 
granted,  it  will,  on  application,  be  dismissed  as  improvidently 
awarded.  No  plea  of  the  statute  is  necessary  in  Virginia.  Time 

is  a  jurisdictional  fact  which  must  be  made  to  appear.89 
J>,ec  \>  KutetJfjL*  *  <*j*- r  vytl**  -  7-o 

85.  Code,   §  3455. 

86.  Buford   v.    North    Roanoke    Land   Company,    94   Va.    616,   27    S. 
E.  509. 

87.  Allison  v.  Wood,  104  Va.  765,  52  S.  E.  559. 

88.  Code,  §  3474;   Bull  v.  Evans,  96  Va.  1,  30  S.   E.  468. 

/89.  Callaway  v.   Harding,  23  Gratt.  542;   Bull  v.   Evans,  supra.     See 
.ante,  §  227. 


§    382  APPLICATION  FOR  WRIT  OF  ERROR  757 

§  382.    Application  for  writ  of  error. 

Upon  the  adjournment  of  the  court,  at  which  a  final  judg- 
ment is  entered,  the  party  intending  to  apply  for  a  writ  of  error 
must  first  obtain  a  transcript  (copy)  of  the  record.  The  first 
step  required  of  him  in  Virginia  is  to  give  notice  to  the  oppo- 
site party,  or  his  counsel,  if  either  reside  in  the  state,  of  his  in- 
tention to  apply  for  a  transcript  of  the  record,  and  the  clerk  is 
forbidden  to  make  out  and  deliver  such  transcript  unless  it  is 
made  to  appear  that  such  notice  was  given.  The  clerk  there- 
upon proceeds  to  make  a  copy  of  the  record,  or  such  part  thereof 
as  is  desired.  If  the  defendant  in  error  wants  some  portion 
copied  which  the  plaintiff  in  error  objects  to,  the  question  is  re- 
ferred to  the  judge  of  the  trial  court,  who  has  to  decide  it.  In 
lieu  of  such  record,  the  parties,  or  their  counsel,  may  agree  the 
facts,  or  any  part  of  them,  and  have  them  copied  by  the  clerk  in 
lieu  of  the  complete  record,  and  this  practice  has  been  com- 
mended.90 After  the  record  is  copied,  it  is  delivered  to  the  ap- 
plicant, who  is  thereupon  required  to  file  a  petition  assigning 
errors.  To  the  foot  of  this  petition  must  be  annexed  the  certifi- 
cate of  some  counsel  practicing  in  the  appellate  court,  that  in  his 
opinion  the  judgment  complained  of  should  be  reviewed  (not 
that  it  be  reversed)  by  the  appellate  court.91  This  petition,  with 
the  certificate  annexed,  together  with  the  transcript  of  the  rec- 
ord, is  transmitted  to  some  judge  of  the  Court  of  Appeals,  who 
endorses  on  it  the  date  of  its  receipt.  He  may  either  grant  or 
refuse  the  writ  of  error.  If  he  refuses  it,  he  marks  it  refused, 
and  passes  it  to  some  other  judge,  and  it  is  passed  from  one  to 
the  other  until  granted  by  some  one,  or  refused  by  all.  And  al- 
though refused  by  all  of  the  judges  in  vacation,  the  applicant 
may,  if  he  chooses,  present  his  petition  to  the  court  at  its  next 
term.  The  court,  in  term,  may  grant  the  writ,  although  it  has 
been  refused  by  each  one  of  the  judges  separately.  Such  ap- 
plications have  been  made,  but  it  is  more  than  doubtful  if  one  has 
ever  been  granted  by  the  court  after  having  been  refused  by  each 

90.  Florance  v.   Morien,  98  Va.  26,  34  S.   E.  890. 

91.  The  counsel  making  this  certificate  may  be  the  same  that  rep- 
resented the  applicant  in  the  trial  court,  provided  he  has  license  to 
practice  in  the  appellate  court. 


758  WRITS  OF  ERROR  §  382 

of  the  judges.  The  writ  of  error  may  be  granted  either  with  or 
without  a  supersedeas,  as  requested.  In  either  event,  a  bond  is 
generally  required  of  the  plaintiff  in  error,  except  where  the  writ 
is  to  protect  the  estate  of  a  decedent,  infant,  convict,  or  insane 
person.  The  condition  of  the  bond  will  be  hereafter  stated.92 

Usually  where  a  party  against  whom  judgment  has  been  ren- 
dered desires  to  apply  for  a  writ  of  error,  he  wishes  to  have  the 
execution  of  the  judgment  suspended  for  a  reasonable  time  in 
order  to  enable  him  to  make  application  for  the  writ.  This  ap- 
plication for  a  suspension  should  be  made  to  the  trial  court 
during  the  term  at  which  the  judgment  is  rendered,  or  to  the 
judge  thereof  in  vacation,  within  thirty  days  after  the  term  has 
ended.  The  suspension  is  generally  granted  as  a  matter  of  course, 
and  is  for  a  reasonable  time  specified  in  the  order,  and  upon  con- 
dition that  the  applicant  give  bond  before  the  clerk  of  said  court, 
in  such  penalty  as  the  court  or  judge  may  require,  with  condi- 
tion (after  making  proper  recitals)  for  the  payment  of  all  such 
damages  as  may  accrue  to  any  person  by  reason  of  said  sus- 
pension in  case  a  supersedeas  to  said  judgment  should  not  be 
allowed  and  be  effectual  within  the  time  specified  in  the  order.93 

The  record  in  an  action  at  common  law  comprises  the  several 
papers  heretofore  mentioned94  and  the  verdict  and  judgment. 
The  mere  filing  of  papers  does  not  make  them  a  part  of  the 
record.  The  rule  book  and  the  order  book  are  the  proper  sources 
of  information  as  to  what  constitutes  the  record.  It  has  been 
held  that  an  amended  declaration,  although  filed  among  the 
papers  in  a  cause,  and  endorsed  by  the  clerk  as  filed  on  a  par- 
ticular day,  is  no  part  of  the  record  in  the  absence  of  an  order 
of  court  permitting  it  to  be  filed ;  and  that  a  bill  of  exception, 
though  signed  by  the  trial  judge  and  found  among  the  papers  in 
the  cause,  is  not  a  part  of  the  record  unless  shown  to  have  been 
made  so  by  some  order  of  the  trial  court.95 

92.  Code,   §§   3457-60,   3464-5-6,   3470. 

93.  Code,  §  3456. 

94.  Ante,  §  281. 

95.  Williams  v.  Ewart,  29  W.  Va.  659,  2  S.  E.  881;  Wickes  v.  Balti- 
more,  14  W.  Va.   157.     See,  also,   Annotations   West  Virginia   Code, 
881. 


§    382  APPLICATION  FOR  WRIT  OF  ERROR  759 

"It  has  been  held  that  if  the  evidence  was  not  sufficiently  iden- 
tified -and  made  a  part  of  the  bill  of  exception  within  the  time 
prescribed  for  taking  the  bill,  the  defect  could  not  be  remedied 
by  a  nunc  pro  tune  order,  but  at  the  recent  session  of  the  leg- 
islature it  was  enacted,  'that  no  case  shall  be  heard  and  decided 
in  the  Court  of  Appeals  on  an  imperfect  or  incomplete  record, 
but  when  said  court  shall  be  of  opinion  that  any  record  or  part 
thereof,  testimony  or  proceeding  has  not  been  properly  identified 
or  certified,  so  as  to  make  it  a  part  of  the  record  in  the  case,  and 
to  bring  it  properly  before  the  Appellate  Court,  and  that  justice 
may  be  done  by  directing  the  trial  court  to  cure  the  defects  in 
the  record,  it  shall  so  order;  and  when  the  defects  shall  have 
been  so  cured  it  shall  proceed  with  the  hearing  on  the  merits.'  "88 

The  petition  for  a  writ  of  error  is  in  the  nature  of  a  pleading, 
and  should  state  clearly  and  distinctly  all  the  errors  relied  on  for 
reversal,  and  errors  not  assigned  in  the  petition,  but  stated  for 
the  first  time  in  oral  argument,  or  in  a  reply  brief,  will  not,  as  a 
rule,  be  considered.  A  suggestion  in  the  petition  that  other  er- 
rors are  to  be  assigned  is  ineffectual  to  reserve  the  right  to  as- 
sign errors  in  a  reply  brief.97  But  one  criminal  case,  at  least, 
was  reversed  on  error  assigned  at  the  bar  in  oral  argument.98 

Xotice  to  Counsel. — 'The  statute"  requiring  that  notice  of  an 
intention  to  apply  for  a  transcript  (copy)  of  record,  with  a  view 
of  applying  for  a  writ  of  error,  has  been  held  to  be  directory 
merely,  but  it  is  said  that  it  is  a  plain  violation  of  duty  by  a 
clerk  to  make  and  deliver  such  transcript  until  the  notice  has 
been  given.  No  form  of  notice  is  prescribed,  nor  it  is  stated 
whether  it  shall  be  verbal  or  in  writing,  but  the  clerk  is  required 

96.  Ante,  §  290;   Barnes  Case,  92  Va.  794,  23  S.   E.  784;  Acts  1912, 
p.   533. 

97.  Orr  v.  Pennington,  93  Va.  268,  24  S.   E.   928;  Atlantic  &  D.   R. 
Co.  v.  Reiger,  95  Va.  418,  28  S.  E.  590;  Kite's  Case,  96  Va.  495,  31  S. 
E.  895;  Norfolk  &  W.  R.  Co.  v.  Perrow,  101  Va.  345,  350,  43  S.  E.  614; 
Hawpe  v.  Bumgardner,   103  Va.  91,  48  S.  E.  554;  Newport  News  R. 
Co.  v.  Bickford,  105  Va.  182,  52  S.  E.  1011;  Amer.  L.  Co.  v.  Hoffman, 
105  Va.  343,  54  S..E.  25;  Sands  v.  Stagg,  105  Va.  444,  52  S.  E.  633,  54 
S.  E.  21. 

98.  Johnson   v.   Commonwealth,  24   Gratt.   555-560. 

99.  Code,  §  3457. 


760  WRITS  OF  ERROR  §§  383-384 

to  certify  that  the  notice  was  given.  The  length  of  the  notice  is 
not  stated,  but  it  should  be  reasonable.  The  notice  may  be  given 
to  counsel  who  represented  the  adverse  party  in  the  trial  court, 
unless  it  is  known  that  he  has  employed  other  counsel,  in  which 
event  it  is  to  be  given  to  the  latter.1 

§  383.    Bond  of  the  plaintiff  in  error. 

If  no  supersedeas  is  awarded,  the  condition  of  the  bond  is  to 
pay  specific  damages,  and  such  costs  and  fees  as  may  be  awarded 
or  incurred.  If  a  supersedeas  is  awarded  to  a  judgment  for  the 
payment  of  money,  the  bond  is  with  condition  to  perform  and 
satisfy  the  judgment,  proceedings  on  which  are  stayed,  in  case  said 
judgment  be  affirmed  or  a  writ  of  error  be  dismissed,  and  also 
to  pay  all  damages,  costs,  and  fees  which  may  be  awarded 
against  or  incurred  by  the  petitioner  in  the  appellate  court,  and 
all  actual  damages  incurred  in  consequence  of  the  supersedeas.2 
The  penalty  of  the  bond  is  fixed  by  the  court  or  judge  awarding 
the  writ.3  This  bond  may  be  given  by  any  one.4  A  writ  of  error 
may  be  dismissed  for  failure  to  give  a  proper  bond,  but  it  will 
not  be  dismissed  for  informality  in  the  bond,  where  the  motion 
has  been  delayed  so  long  that  it  is  too  late  to  give  a  new  bond  or 
to  award  a  new  writ  of  error.5  Mere  informalities  in  the  bond 
or  its  condition  do  not  render  the  bond  void,  and  they  may  be 
corrected  on  application  to  the  appellate  court.6  Dismissal  of  a 
writ  of  error  for  failure  to  give  bond  is  equivalent  to  an  af- 
firmance of  the  judgment  of  the  lower  court.7 

§  384.    Rule  of  decision. 

Where  a  case  has  been  tried  by  a  jury,  or  has  been  decided  by 
the  court  without  the  intervention  of  a  jury,  and  objection  is 

1.  Mears  v.  Dexter,  86  Va.  828,  11  S.  E.  538;  Norfolk  &  W.  R.  Co. 
v.  Dunnaway,  93  Va.  29,  24  S.  E.  698. 

2.  Code,  §  3470;  Bemis  v.  Comth.,  113  Va.  489,  75  S.  E.  115. 

3.  Code,  §  3470. 

4.  Code,    §   3495. 

5.  Va.  Fire  &  Marine  Ins.  Co.  v.  N.  Y.,  etc.,  Co.,  95  Va.  515,  28  S. 
E.  888. 

6.  Ackner  v.  Railroad  Co.,  84  Va.  648,  5  S.   E.  688. 

7.  Hicks  v.  Roanoke  Brick  Co.,  94  Va.  741,  27  S.  E.  596. 


§    384  RULE  OF  DECISION  761 

made  to  the  verdict  of  the  jury,  or  to  the  judgment  of  the  court, 
as  the  case  may  be,  on  the  ground  that  the  same  is  contrary  to 
the  evidence,  and  reversal  is  sought  on  this  ground,  the  trial 
court  may  either  certify  the  facts,  or,  if  this  cannot  be  done,  may 
certify  the  evidence.  If  there  is  no  conflict  in  the  evidence,  and 
the  facts  can  be  certified,  it  is  the  duty  of  the  court  to  do  so,  but 
in  most  cases  the  evidence  is  conflicting,  and  there  is  a  dispute 
as  to  what  the  facts  are.  In  such  case  the  certificate  of  evidence 
is  all  that  can  be  given.  The  certificate,  however,  may  be  partly 
of  facts  and  partly  of  evidence.8  The  form  of  the  certificate  is 
immaterial.  The  court  will  look  to  the  substance  of  the  certifi- 
cate itself  to  determine  whether  it  is  one  of  facts  or  of  evidence.9 
If  the  facts  are  certified,  the  appellate  court  will  determine  the 
case  upon  the  facts  without  presumption  either  way.  If,  how- 
ever, the  certificate  be  one  of  evidence,  then  the,  plaintiff  in  error 
goes  up  as  on  a  demurrer  to  the  evidence,10  and  the  verdict  and 
the  judgment  thereon  of  the  trial  court  will  not  be  disturbed  un- 
less it  is  plainly  contrary  to  the  evidence,  or  is  without  evidence 
to  support  it.  If  the  evidence  is  conflicting  on  material  points 
the  judgment  of  the  trial  court  sustaining  the  verdict  of  the  jury 
will  be  affirmed11  but  if  there  is  serious  conflict  of  evidence  on 
a  material  point,  the  judgment  of  the  trial  court  setting  aside  a 
verdict  will  be  reversed  and  judgment  entered  up  by  the  appel- 
late court  on  the  verdict ;  and,  in  considering  such  a  case  on  a 
writ  of  error,  it  is  not  heard  as  on  a  demurrer  to  the  evidence.12 
When  it  is  said  that  a  plaintiff  in  error  goes  up  as  on  demurrer 
to  the  ezndence,  it  must  not  be  understood  that  the  same  judg- 
ment is  always  to  be  entered  as  in  the  case  of  a  demurrer  to  the 
evidence.  All  that  is  meant  is  that  the  plaintiff  in  error  makes 
the  same  concessions  and  admissions  as  are  required  of  one  who 
demurs  to  the  evidence.  Generally  the  judgment  of  the  appellate 
court  is  final  where  there  was  a  demurrer  to  the  evidence  in  the 

8.  N.  Y.,  etc.,  Ry.  Co.  v.  Thomas,  92  Va.  606,  24  S.   E.  264. 

9.  Read's   Case,   22    Gratt.    924. 

10.  Code,  §  3484;  Norfolk,  etc..  Co.  v.  Adamson,  111  Va.  556,  69  S. 
E.  1055. 

11.  Martin  r.  Ry.  Co.,  101  Va.  406,  44  S.  E.  695. 

12.  Thompson  v.  Norfolk  &  P.  R.  Co.,  109  Va.  733,  64  S'.  E.  953. 


762  WRITS  OF  ERROR  §  384 

trial  court,  but  where  a  case  has  been  tried  by  a  jury  upon  con- 
flicting evidence,  and  the  evidence  has  been  certified  and  not  the 
facts,  although  the  plaintiff  in  error  makes  the  same  concessions 
and  admissions  as  are  required  of  a  demurrant  to  the  evidence, 
yet  the  judgment  of  the  appellate  court,  upon  reversing  the  judg- 
ment of  the  trial  court,  is  that  the  verdict  of  the  jury  be  set  aside 
and  the  cause  remanded  for  a  new  trial,  as  that  is  the  judgment 
the  trial  court  ought  to  have  entered. 

The  rule  above  stated,  with  reference  to  a  plaintiff  in  error  go- 
ing up  as  on  a  demurrer  to  the  evidence,  applies  where  there  has 
been  only  one  trial  in  the  court  below.  If  there  has  been  more 
than  one  trial,  a  different  rule  prevails.  In  this  case  the  appel- 
late court  will  look  first  to  the  proceedings  on  the  first  trial  to 
determine  whether  error  was  committed  in  setting  aside  the  first 
verdict,  and  in  looking  at  the  proceedings  for  this  purpose,  it 
does  not  consider  the  case  as  on  a  demurrer  to  the  evidence,  but 
looks  to  the  evidence  just  as  the  trial  court  ought  to  have  looked 
at  it  in  determining  whether  or  not  the  verdict  should  be  set 
aside.13  If  it  finds  that  the  trial  court  erred  in  setting  aside  the 
first  verdict,  it  will  set  aside  and  annul  all  proceedings  subsequent 
to  that  verdict,  and  enter  up  judgment  on  the  first  verdict.  If, 
however,  it  finds  that  no  error  was  committed,  and  that  the  ver- 
dict was  rightly  set  aside,  it  will  then  proceed  to  consider  the 
second  trial  (supposing  that  to  be  the  one  under  review)  as  on 
a  demurrer  to  the  evidence  by  the  plaintiff  in  error.14  The  sec- 

13.  Humphrey  v.  Valley  R.  Co.,  100  Va.  749,  42  S.  E.  882;  Citizens' 
Bank  v.  Taylor,  104  Va.  164,  57  S.  E.  159. 

14.  Prior  to  the  revision  of  1887,  there  were  several  rules  of  deci- 
sion, as  applied  to  different  classes  of  cases,  where  the  evidence,  and 
not  the  facts,  was  certified  (Judge  Burks'  Address,  p.  40).     in  Jones 
v.   Old   Dominion   Cotton   Mills,  82  Va.  140,  there  were  three  trials. 
The  first  and  second  trials  were  before  a  jury,  and  in  each   case  a, 
verdict  for  the  plaintiff  was   set  aside   on  motion   of  the   defendant. 
On  the  third  trial,  there  was  a  demurrer  to  the  evidence  by  the  de- 
fendant which  the  trial  court  sustained.     Each  successive  verdict  in- 
creased the  amount  found  for  the  plaintiff.     In  each  of  the  first  two 
trials,  the  plaintiff  objected  to   setting  aside  the   verdict,  and   saved 
his  objection  by  proper  bills  of  exception.     After  the  third  trial,  the 
plaintiff  obtained  a  writ  of  error  from  the  Court  of  Appeals,  and  that 
Court,  instead  of  examining  the  first  trial  first,  and  entering  up  judg- 


§  384  RULE  OP  DECISION  763 

tion  of  the  Code  quoted  in  the  margin  speaks  of  only  two  trials 
in  the  lower  court.  The  trial  court,  if  it  deems  it  proper,  may 
grant  two  new  trials,15  which  would  mean  three  trials  in  all. 
If  the  writ  of  error  is  to  a  judgment  rendered  on  a  third  trial, 
the  statute  does  not  say  how  the  appellate  court  shall  view  the 
proceedings  on  the  second  trial,  but  as  it  has  resulted  in  the 
setting  aside  the  verdict  of  a  jury  it  is  presumed  that  the  pro- 
ceedings on  the  second  trial  will  be  viewed  in  the  same  light  as 
is  provided  by  the  statute  for  reviewing  the  proceedings  of  the 
first  trial  when  there  have  been  only  two  trials  in  the  lower  court. 
Trial  courts,  however,  are  invested  with  a  certain  amount  of 
discretion  in  the  supervision  of  verdicts,  and  in  granting  or  re- 
fusing new  trials.  This  fact  will  be  borne  in  mind  by  the  ap- 
pellate court  where  a  verdict  has  been  set  aside  by  the  trial  court, 

ment  for  the  error  committed  in  setting  aside  the  verdict,  considered 
the  case  on  the  demurrer  to  the  evidence  and  entered  judgment 
thereon  for  the  largest  amount,  which  was  the  amount  found  on  the 
third  trial.  After  this,  the  revisers  undertook  to  establish  a  uniform 
rule  of  decision  in  cases  where  the  evidence  was  certified,  and  pro- 
vided in  all  cases  that  the  rule  of  decision  should  be  as  on  a  demurrer 
to  the  evidence  by  the  party  excepting.  It  is  stated  by  Judge  Burks, 
in  his  Address,  p.  40,  that  it  was  supposed  that  this  rule  operated 
harshly  on  the  excepting  party,  where  there  had  been  two  trials,  and 
hence  it  was  amended  by  the  legislature  in  this  particular.  The  pres- 
ent law  on  the  subject  is  embraced  in  §  3484  of  the  Code,  which  is 
as  follows: 

"When  a  case  at  law,  civil  or  criminal,  is  tried  by  a  jury  and  a 
party  excepts  to  the  judgment  or  action  of  the  court  in  granting  or 
refusing  to  grant  a  new  trial  on  a  motion  to  set  aside  the  verdict  of 
a  jury  on  the  ground  that  it  is  contrary  to  the  evidence,  or  when  a 
case  at  law  is  decided  by  a  court  or  judge  without  the  intervention 
of  a  jury  and  a  party  excepts  to  the  decision  on  the  ground  that  it 
is  contrary  to  the  evidence,  and  the  evidence  (not  the  facts)  is  certi- 
fied, the  rule  of  decision  in  the  appellate  court  in  considering  the 
evidence  in  the  case  shall  be  as  on  a  demurrer  to  the  evidence  by  the  ap- 
pellant, except  when  there  have  been  two  trials  in  the  lower  court,  in 
li'hich  case  the  rule  of  decision  shall  be  for  the  appellate  court  to  look 
first  to  the  evidence  and  proceedings  on  the  first  trial,  and  if  it  discovers 
that  the  court  erred  in  setting  aside  the  verdict  on  that  trial  it  shall  set 
aside  and  annul  all  proceedings  subsequent  to  said  verdict  and  enter  judg- 
ment thereon." 

15.  Code,   §   3392. 


764  WRITS  OF  ERROR  §    385 

and  allowance  made  therefor,  and  this  is  especially  true  where 
the  verdict  on  the  subsequent  trial  is  substantially  reduced  in 
amount,  or  is  found  for  the  opposite  party.16  Here  the  last  ver- 
dict is  consistent  with  the  judgment  of  the  court  in  setting  aside 
the  first  verdict. 

A  stronger  case  must  also  be  made  to  warrant  the  appellate 
court  in  disturbing  an  order  granting  a  new  trial  than  one  re- 
fusing it,  because  refusal  is  final,  whereas  a  new  trial  simply 
invites  further  investigation.17  It  was  formerly  necessary  in 
Virginia  for  a  party  to  make  a  motion  for  a  new  trial  on  the 
ground  that  the  verdict  was  contrary  to  the  evidence  in  order  to 
have  the  benefit  of  any  other  exceptions  taken  during  the  trial, 
but  this  rule  has  been  changed  by  statute,  and  it  is  no  longer 
necessary  to  make  a  motion  for  a  new  trial  in  order  to  have  the 
benefit  of  other  exceptions  taken  during  the  trial.  The  statute 
now  provides  that  the  failure  to  make  such  motion  shall  not  be 
deemed  a  waiver  of  any  objections  made  during  the  trial,  if  such 
objections  be  properly  made  a  part  of  the  record.18 

§  385.    Judgment  of  appellate  court. 

The  character  of  the  judgment  to  be  entered  by  the  appellate 
court  is  largely  dependent  upon  the  proceedings  had  in  the  trial 
court. 

Demurrer. — If  a  demurrer  to  a  declaration  is  sustained  by  the 
trial  court  because  the  declaration  fails  to  state  a  case,  and  this 
judgment  is  affirmed  on  writ  of  error,  that  is  the  end  of  the 
case,19  and  whether  or  not  a  new  action  can  be  maintained  for 
the  same  cause  upon  a  different  state  of  facts  depends  upon 
whether  or  not  the  merits  of  the  case  were  involved  in  the  first 
action.  If  they  were,  and  a  different  case  is  not  made  in  the 
second  action  from  that  stated  in  the  first,  then  the  decision  on 
the  demurrer  in  the  first  case  is  final,  as  a  judgment  on  demurrer 
involving  the  merits  is  as  conclusive  as  one  rendered  on  the 

16.  Citizens'  Bank  v.  Taylor,  104  Va.  164,  51  S.  E.  159. 

17.  Chapman  v.  Va.  R.  E.  Co.,  96  Va.  177,  31  S.  E.  74. 

18.  Code,  §  3385a. 

19.  Graves  v.   Scott,  104  Va.  775,  51  S.  E.  821;  Hortenstein  v.  Va.- 
Car.  R.  Co.,  102  Va.  914,  47  S.  E.  996. 


§    385  JUDGMENT  OF  APPELLATE   COURT  765 

proof.20  If  a  demurrer  for  misjoinder  of  causes  of  action  be 
overruled  by  the  trial  court,  but  sustained  by  the  appellate  court, 
then  it  seems  that  the  appellate  court  will  enter  judgment  over- 
ruling the  judgment  of  the  trial  court  and  remand  the  case,  with 
liberty  to  the  plaintiff  to  amend  his  declaration  so  as  to  cure  the 
misjoinder,21  though  it  is  said,  obiter,  in  one  case  that  the  judg- 
ment of  the  trial  court  sustaining  a  demurrer  for  such  misjoinder 
"should  have  been  final  at  that  time  in  favor  of  the  defendants, 
instead  of  permitting  the  plaintiff  to  amend."22  If  a  demurrer 
to  a  declaration  has  been  overruled  in  the  trial  court,  and  the 
cause  has  proceeded  to  trial,  resulting  in  a  judgment  for  the 
plaintiff,  and,  on  a  writ  of  error,  the  appellate  court  is  of  opinion 
that  the  trial  court  erred  in  its  ruling  on  the  demurrer,  the  judg- 
ment to  be  entered  by  the  appellate  court  varies  according  to  the 
circumstances  of  the  case.  If  there  was  only  one  count  in  the 
declaration,  and  the  appellate  court  holds  that  to  be  bad,  or  if 
more  than  one  count  -and  it  holds  all  to  be  bad,  then  usually  the 
court  will  reverse  the  judgment  of  the  trial  court  and  remand 
the  case,  with  liberty  to  the  plaintiff  to  amend  his  declaration.23 
But  if  the  court  can  see  from  the  facts  stated  that  a  good  case 
cannot  be  stated  for  the  plaintiff,  it  will  enter  up  final  judgment 
on  the  demurrer  for  the  defendant,  without  remanding  the  case.24 
So,  also,  where  a  demurrer  to  a  declaration  has  been  overruled, 
and  the  plaintiff  of  his  own  motion  has  filed  an  amended  decla- 
ration, to  which  a  demurrer  was  also  overruled  by  the  trial  court, 
it  will  be  presumed  that  the  plaintiff  has  stated  his  case  as  strongly 
as  the  facts  would  warrant,  and  the  appellate  court,  upon  sus- 

20.  Ante,  pp.  364-5. 

21.  Creel   v.   Brown,   1    Rob.   265;    Fitzhugh  v.   Fitzhugh,    11    Gratt. 
300;  Penn.  R.  Co.  v.  Smith,  106  Va.  645,  56  S.   E.  567. 

22.  Gary  r.  Abingdon  Pub.  Co.,  94  Va.  775,  779,  27  S.  E.  595. 

23.  Norfolk  &  W.   R.  Co.  v.   Gee,  104  Va.  806,  52   S.   E.  572;   Nor- 
folk &  W.  R.   Co.  v.   Stegall,  105  Va.  538,  54  S.   E.  19;  Washington, 
etc..    R.    Co.   v.   Taylor,    109   Va.    737,   64   S.    E.   975;    Note    by  Judge 
Burks.  1  Va.  L.  Reg.  900. 

24.  Norfolk   &   W.    R.   Co.  v.   Scruggs,   105   Va.    166.   52    S.    E.   834. 
Here  the  complaint  was  that  a  railroad  company  gave  no  notice  to 
a  traveller  on  the  highway  of  the  approach  of  a  train  to  an  over- 
head crossing. 


766  WRITS  OF  ERROR  §    385 

taining  the  defendant's  demurrer  to  both  declarations,  will  enter 
up  final  judgment  for  the  defendant.25 

If  there  are  more  counts  than  one  in  the  declaration,  some  of 
which  are  good  and  others  bad,  and  there  is  either  no  demurrer 
at  all,  or  a  demurrer  to  the  declaration  as  a  whole,  and  not  to 
the  separate  counts,  and  entire  damages  are  found,  and  it  can- 
not be  told  upon  which  count  the  verdict  was  founded,  judg- 
ment must  be  entered  up  for  the  plaintiff,  for  the  statute  so  de- 
clares.26 If,  however,  there  was  a  demurrer  to  each  count  of 
the  declaration,  and  the  court  can  plainly  see  that  the  verdict 
was  founded  on  the  good  count,  it  will  uphold  it,  but  if  on  the 
bad,  it  will  set  it  aside.  If  it  cannot  see  on  which  count  the 
verdict  was  founded,  the  court  will  treat  the  demurrer  to  the 
faulty  counts  as  a  request  to  the  court  to  instruct  the  jury  to 
disregard  them,  and  will  reverse  the  case  and  remand  it  for  a 
new  trial.27  If  the  case  be  reversed  for  failure  of  the  trial 
court  to  sustain  a  demurrer  to  any  pleading  subsequent  to  the 
declaration,  the  modern  practice  seems  to  be  to  remand  with 
liberty  to  the  party  whose  pleading  is  demurred  to,  to  amend, 
if  he  so  desires.  In  Cromer  v.  Cromer,  29  Gratt.  280,  286,  the 
defendant  demurred  to  the  plaintiff's  replication  and  the  trial 
court  overruled  the  demurrer.  This  ruling  was  held  to  be  error 
by  the  appellate  court,  and  it  was  said  that  the  demurrer  should 
have  been  sustained,  and  in  considering  the  order  to  be  entered 
in  the  appellate  court,  Judge  Burks  speaking  for  the  court  says : 
"And  on  the  authority  of  Hamtramck  v.  Selden,  Withers  & 
Company,  12  Gratt.  28;  Strange  v.  Floyd,  1  Gratt.  474,  and 
other  cases,  and  according  to  the  settled  practice  of  this  court, 
the  cause  should  be  remanded  to  the  circuit  court,  with  direc- 

25.  Ches.  &  O.  R.  Co.  v.  Wills,  111  Va.  32,  68  S.  E.  395.     But  see 
Washington,  etc.,  R.   Co.  v.  Taylor,  109  Va.  737,  64  S.   E.  975. 

26.  The  statute  (Code,  §  3389)  provides:     "When  there  are  several 
counts,  one  of  which  is  faulty,  the  defendant  may  ask  the  court  to 
instruct  the  jury  to  disregard  it;  yet  if  entire  damages  be  given,  the 
verdict  shall  be  good." 

27.  See  discussion,  ante,  §  301;  So.  Ry.  Co.  v.  Hansbrough,  105  Va. 
527,  54   S.   E.  17;  Va.   Cedar  Works  v.   Dalea,  109  Va.   333,   64  S.   E. 
41;  Newport  News  v.  Nicolopoolos,  109  Va.  165,  63  S.  E.  443;  Chesa- 
peake &  O.  R.  Co.  v.  Melton,  110  Va.  728,  67  S.  E.  346. 


§    385  JUDGMENT   OF  APPELLATE   COURT  767 

tions  to  sustain  the  demurrer  to  the  plaintiff's  replication  and 
render  judgment  thereon  for  the  defendant,  unless  the  plaintiff 
withdraws  his  said  replication,  which  he  should  have  liberty  to 
do,  if  he  asks  it,  and  file  a  sufficient  replication  in  its  stead."28 

Demurrer  t.o  the  Evidence. — If  a  case  is  heard  in  the  trial  court 
on  a  demurrer  to  the  evidence,  the  appellate  court  must  as  a  rule 
either  affirm  the  judgment,  or  else  reverse  it  and  give  final  judg- 
ment for  the  opposite  party,  though  in  some  exceptional  cases, 
hereinbefore  pointed  out,29  it  may  set  aside  the  whole  proceed- 
ing and  order  a  new  trial.  Where  a  demurrer  to  the  evidence 
has  been  wholly  sustained  by  the  trial  court,  and  the  jury  have 
found  a  gross  sum  'for  damages,  but  on  writ  of  error  the  appel- 
late court  is  of  opinion  that  the  demurrer  should  have  been  over- 
ruled as  to  certain  items  of  account,  the  amount  and  value  of 
which  are  readily  ascertainable  from  the  record,  it  will  not  re- 
mand the  case  in  order  to  have  the  error  corrected,  but  will  enter 
up  final  judgment  for  the  demurree  for  the  value  of  such  items.30 

Case  Heard  by  Trial  Judge  vuithout  a  Jury. — Where  the  trial 
court  hears  and  determines  a  case  without  the  intervention  of  a 
jury,  the  appellate  court,  upon  reversing  the  judgment,  will  gen- 
erally enter  up  final  judgment  for  the  opposite  party.  It  does 
not,  as  a  rule,  award  a  new  trial.  It  is  required  to  enter  such 
judgment  as  the  trial  court  ought  to  have  entered;31  and  in  con- 
sidering whether  or  not  the  judgment  should  be  reversed,  the 
judgment  of  the  lower  court  is  given  the  same  weight  as  the 
verdict  of  a  jury.32 

Jury  Trial  in  Lower  Court. — If  the  case  is  heard  in  the  trial 
court  by  a  jury,  upon  the  evidence  adduced,  the  appellate  court, 
if  it  reverses,  makes  an  order  for  a  new  trial  to  be  had  in  the 

28.  See,  also,  14  Va.  L.  Reg.  836  and  cases  cited;  ante,  §  208. 

29.  Ante,  §  264,  and   Note  59. 

30.  Whitehead  v.  Cape  Henry  Syndicate,  111  Va.  193,  68  S.  E.  263. 

31.  N.  &  W.  v.  Dunnaway,  93  Va.  29-41,  24  S.  E.  698;  Metropolitan 
Life  Ins.  Co.  v.  Rutherford,  98  Va.  195,  35  S.  E.  361;  Martin  v.  Ry. 
Co.,  101  Va.  406,  44  S.  E.  695;  United  Moderns  v.  Rathbun,  104  Va. 
236,  52  S.  E.  552;   Edmonson  v.  Potts,  111  Va.  79,  63  S.  E.  254;  Wor- 
ley  v.  Adams,  111  Va.  796,  69  S.  E.  929. 

32.  Hoster  Co.  v.  Stag  Hotel  Corp.,  Ill  Va.  223,  68  S.   E.  50. 


768  WRITS  of  SRROR  §  385 

court  below,  as  that  is  the  judgment  which  the  trial  court  should 
have  entered. 

Divided  Court. — It  has  been  held  that  §  88  of  the  constitution, 
which  requires  at  least  three  of  the  judges  of  the  Court  of  Ap- 
peals to  agree  upon  a  decision,  applies  only  to  constitutional  ques- 
tions, and  that  other  cases  may  be  affirmed  by  a  divided  court,  and 
reliance  was  placed  upon  the  language  of  §  3485  of  the  Code  of 
1887,  directing  affirmance  "where  the  voices  on  both  sides  are 
equal."33  The  language  of  §  3485  of  the  Code  of  1887,  "affirm- 
ing in  those  cases  where  the  voices  on  both  sides  are  equal," 
which  had  been  the  law  in  Virginia  since  1779,34  was  changed 
by  an  act  approved  December  31,  1903,  taking  effect  on  and 
after  February  1,  1904,  by  striking  out  the  words  above  quoted 
and  substituting  the  language  of  §  88  of  the  constitution  in  their 
place.35  This  change  was  made  two  weeks  before  Funkhouser 
v.  Spahr,  supra,  was  decided,  and  hence  was  not  in  consequence 
of  the  decision,  nor  could  the  act  have  affected  the  decision  as  it 
did  not  go  into  effect  until  two  weeks  after  the  case  was  decided. 

As  the  law  now  stands,  there  is  no  statute  providing  for  an 
equally  divided  court,  if  no  constitutional  question  is  involved. 
This,  however,  does  not  change  the  law.  The  former  statute 
was  simply  declaratory  of  a  well-settled  pre-existing  rule  of 
necessity,  which  is  not  changed  by  the  omission  from  the  present 
statute  of  anything  on  .the  subject,  so  that  now,  as  formerly,  if 
the  Court  of  Appeals  is  equally  divided  in  opinion  on  other  than 
a  constitutional  question,  the  judgment  of  the  lower  court  is 
affirmed,  and  this  is  the  rule  generally  prevailing  elsewhere.36 
Even  where  there  has  been  no  decision  of  the  question  by  the 
court  below,  but  there  is  an  equal  division  of  the  judges  on  the 
question  of  the  jurisdiction  of  the  appellate  court,  it  is  held  by 
the  Supreme  Court  of  the  United  States  that  the  writ  of  error 
will  be  dismissed,37  though  a  different  view  has  been  taken  by 
the  Court  of  Appeals  of  West  Virginia.38 

33.  Funkhouser  v.  Spahr,  102  Va.  306,  46  S.  E.  309. 

34.  1   Rev.  Code,  1819,  pp.  194-5. 

35.  Code    (1904),   §   3485. 

36.  Charlottesville  R.  Co.  v.  Rubin,  107  Va.  751,  60  S.  E.  101.     This 
case  gives  a  very  full  citation  of  authority. 

37.  Holmes  v.  Jennison,   14  Peters   540. 

38.  State  v.  Hays,  30  W.  Va.  107,  3  S.  E.  177. 


§§  386-387    HOW  DECISION  CERTIFIED  AND  ENFORCED  769 

While  a  decision  by  a  divided  court  is  binding  upon  the  par- 
ties and  settles  the  particular  controversy,  it  does  not  constitute 
any  precedent  for  succeeding  cases.39  West  Virginia  goes  even 
further  than  this,  and  has  declared,  both  by  constitutional  pro- 
vision and  by  statute,  that  no  decision  of  the  Court  of  Appeals 
shall  be  binding  on  the  inferior  courts,  except  in  the  particular 
case  decided,  unless  it  is  concurred  in  by  at  least  three  judges  of 
that  Court.40  Hence  a  decision  by  a  court  of  three  judges  is 
not  binding  on  the  inferior  courts  unless  all  three  of  them  con- 
cur in  the  opinion. 

§  386.    Change  in  law. 

Writs  of  error  in  the  Court  of  Appeals  of  Virginia  must  be 
disposed  of  on  the  merits  in  accordance  with  the  law  as  it  ex- 
isted at  the  time  of  the  rendition  of  the  judgment  complained 
of.  If,  as  the  law  then  stood,  there  is  no  error  in  the  judgment, 
it  must  be  affirmed,  but,  if  erroneous,  it  must  be  reversed,  and 
such  judgment  entered  as  the  lower  court  ought  to  have  en- 
tered.41 Merely  remedial  statutes,  however,  though  passed 
after  adjudication  by  the  trial  court,  will  be  applied  to  appeals 
and  writs  of  error  thereafter  applied  for.42  The  rule  first  above 
stated  is  generally  otherwise  outside  of  Virginia,  and  the  case 
is  decided  according  to  the  law  as  it  is  when  the  case  is  heard 
in  the  appellate  court.43 

§  387.    How  decision  certified  and  enforced. 

When  a  case  is  decided  by  the  Court  of  Appeals,  the  clerk  of 
that  court  is  required  to  transmit  the  decision  of  the  court  to 
the  court  below,  and  the  court  below  enters  the  decision  of  the 
appellate  court  as  its  own,  and  enforces  it  by  execution  or  other 
proper  process.44 

39.  Durant  v.   Essex  Company,  1   Wall.    107. 

40.  Constitution  W.  Va.,  Art.  8,  §  4;  Code  W.  Va.,  §  4058. 

41.  Anderson  v.  Hygeia  Hotel  Co.,  92  Va.  687,  24  S.   E.  269;  Wil- 
son v.  Hundley,  96  Va.  96,  30  S.  E.  492. 

42.  Allison  v.  Wood,   104  Va.  765,  52  S.   E.  559. 

43.  3  Cyc.  407. 

44.  Code,  §§  3488,  3490. 

—49 


770  WRITS  OF  ERROR  §§  388-390 

§  388.    Finality  of  decision. 

The  decision  of  the  appellate  court,  right  or  wrong,  is  final 
after  the  rehearing  period  has  passed.  Neither  the  Court  of 
Appeals  nor  any  other  court  can  correct  it.45 

§389.    Rehearing. 

If  a  case  be  decided  during  the  last  fifteen  days  of  a  term, 
application  may  be  made  for  a  rehearing  at  any  time  before  the 
end  of  the  term,  or  within  fifteen  days  after  the  commencement 
of  the  next  term.  In  all  other  cases,  the  application  to  rehear 
must  be  made  during  the  term  at  which  the  case  was  decided 
within  ten  days  after  the  decision  is  announced,  and  in  all  cases 
the  reasons  for  the  rehearing,  printed,  must  be  filed  at  the  time 
application  is  made.  No  rehearing  will  be  allowed  unless  one  of 
the  judges  who  concurred  in  the  decision  shall  be  dissatisfied 
with  it  and  desire  a  rehearing.46 

§  390.    Objections  not  made  in  trial  court. 

The  Court  of  Appeals  can  only  consider  a  case,  on  a  writ  of 
error,  on  the  record  as  made  in  the  trial  court.  If  this  fails  to 
disclose  the  errors  complained  of,  they  cannot  be  considered.47 
Generally,  objections  not  shown  to  have  been  made  in  the  trial 
court  cannot  be  set  up  for  the  first  time  in  the  appellate  court, 
No  complete  enumeration  of  such  cases  will  be  attempted.  A 
few  illustrations  must  suffice.  The  rulings  of  the  trial  court 
on  the  admission  or  rejection  of  evidence,48  on  the  competency 
of  a  witness,49  on  the  giving  or  refusing  to  give  instructions,5* 

45.  Campbell    v.  Campbell,  22  Gratt.  649;  Rosenbaum  v.  Seddon,  94 
Va.  575,  27  S.  E.  425;  Stuart  v.  Peyton,  97  Va.  796,  34  S.  E.  696;  Nor- 
folk &  W.   R.  v.   Duke,   107   Va.   764,   60   S.    E.   96;    Matthews   Co.  v. 
Progress  Co.,  108  Va.  777,  62  S.  E.  924;   Koonce  v.  Doolittle,  48  W. 
Va.  592,  37  S.  E.  644;  Ex  parte  Sibbald,  12  Peters  492. 

46.  Code,  §  3492;   Rule  of  Court  XVIII,  100  Va.  p.  X;   111  Va.  p. 
IX,  Rule  XVII. 

47.  Barnes'   Case,  92  Va.   794,  23   S.   E.  784. 

48.  Fentress  v.  Pocahontas  Club,  108  Va.  155,  60  S.  E.  633. 

49.  City  of  Richmond  v.  Wood,  109  Va.  75,  63  S.  E.  449. 

50.  Saunders  v.  Bank,  112  Va.  443,  71  S.  E.  714;  Wallen  v.  Wallen, 
107  Va.  131,  57   S.  E.   596. 


§    390  OBJECTIONS   NOT   MADE)  IN  TRIAL  COURT  771 

on  the  misconduct  of  parties  or  their  counsel,51  and,  indeed, 
everything  which  is  not  per  se  a  part  of  the  record,  must  be  made 
a  part  thereof  by  proper  proceedings  had  in  the  trial  court,  and 
if  a  review  of  the  rulings  of  the  trial  court  thereon  is  sought  to 
be  had,  it  must  appear  that  proper  objections  to  such  rulings 
were  made  in  the  trial  court.  Such  objections  cannot  be  made 
for  the  first  time  in  the  appellate  court.  An  objection,  for  in- 
stance, to  the  size  of  the  type  of  an  insurance  policy  cannot  be 
raised  in  the  appellate  court  for  the  first  time.52  So,  where  a 
restrictive  provision  of  a  bill  of  lading  was  not  relied  on  or 
considered  in  the  trial  court,  and  no  motion  was  there  made  to 
exclude  the  evidence  as  to  the  carrier's  liability  because  of  the 
nonperformance  thereof,  it  will  be  deemed  to  have  been  waived, 
and  cannot  be  insisted  on  for  the  first  time  in  the  appellate 
court.53  So,  likewise,  if  the  unconstitutionality  of  a  statute  is 
relied  on  as  the  basis  of  the  appellate  jurisdiction  under  a  con- 
stitutional provision  conferring  appellate  jurisdiction  "in  all  cases 
involving  the  constitutionality  of  a  law  as  repugnant  to  the  con- 
stitution of  this  state,  or  of  the  United  States,"  it  must  appear 
that  the  constitutionality  of  the  law  was  called  in  question  in 
some  way  and  decided  by  the  trial  court;54  but  any  proceeding* 
which  necessarily  puts  in  issue  the  constitutionality  of  a  statute, 
whether  it  be  by  demurrer,  plea,  instruction,  or  otherwise,  is 
sufficient  to  confer  jurisdiction  on  the  Court  of  Appeals.55  If, 
however,  the  objection  be  that  the  trial  court  had  no  jurisdiction 
of  the  subject  matter  of  the  litigation,  the  objection  may  be  made 
in  the  appellate  court  for  the  first  time.56  Indeed,  if  the  trial 
court  had  no  jurisdiction  of  the  subject  matter,  its  judgment  is 
a  mere  nullity,  and  may  be  treated  as  such.  It  may  be  assailed, 
directly  or  indirectly,  anywhere,  at  any  time,  in  any  way.  So, 
also,  where  it  appears  that  the  appellate  court  has  no  jurisdic- 

51.  Southern  R.  Co.  v.  Simmons,  105  Va.  651,  55  S.  E.  459. 

52.  Sulphur  Mines  Co.  v.  Phoenix  Ins.  Co.,  94  Va.  355,  26  S.  E.  856. 

53.  Norfolk  &  W.   R.   Co.  v.   Wilkinson,   106  Va.   775,  56   S.   E.   808. 

54.  Hulvey  v.  Roberts,  106  Va.  189,  55  S.  E.  585. 

55.  Adkins  v.  Richmond,  98  Va.  91,  34  S.  E.  967. 

56.  S.   &  W.   R.   Co.  v.  Commonwealth,  104  Va.  314,  51   S.   E.  824; 
Hanger  v.  Commonwealth,  107  Va.  872,  60  S.  E.  67. 


772  WRITS  OF  ERROR  §  391 

tion  of  a  writ  of  error,  or  appeal,  it  will  be  dismissed  by  the 
court  ex  inero  motu,  though  no  objection  was  made  on  that  ac- 
count at  the  hearing.57 

Although  objections  were  in  fact  made  in  the  trial  court,  they 
will  not  be  considered  unless  properly  presented  in  the  record.58 
Thus,  it  has  been  held  that  the  judgment  of  a  trial  court  setting 
aside  a  verdict  because  contrary  to  the  law  and  the  evidence 
cannot  be  reviewed  by  the  appellate  court  when  the  instructions 
given  in  the  trial  court  are  not  made  a  part  of  the  record.  The 
appellate  court  cannot  assume  that  the  instructions  were  free 
from  error,  nor  pass  at  all  upon  that  ground  for  setting  aside 
the  verdict.59  So,  likewise,  if  the  record  does  not  show  what 
instructions  were  given  by  the  trial  court,  an  exception  to  the 
ruling  of  the  court  refusing  to  give  a  single  instruction  will  not 
be  considered  on  a  writ  of  error,  as  the  rejected  instruction  may 
have  been  covered  by  other  instructions  given.60 

§  391.    Putting  a  party  upon  terms. 

A  party  may  be  in  effect  put  on  terms  in  the  appellate  court  as 
well  as  in  the  trial  court.  When  a  party  is  put  on  terms  in  the 
appellate  court  because  a  judgment  in  his  favor  is  excessive, 
it  may  reverse  the  judgment  of  the  trial  court  and  remand  the 
cause,  with  direction  to  the  trial- court  to  put  the  successful  party 
upon  terms  to  release  the  excess,  or  else  submit  to  a  new  trial,  and 
if  the  release  is  made,  to  overrule  the  motion  for  a  new  trial  and 
render  judgment  for  the  correct  amount,  with  interest  and 
costs;61  or,  if  the  error  be  one  of  mere  calculation,  readily  cor- 
rected from  the  record,  or  if  the  verdict  and  judgment  of  the  trial 
court  is  excessive  and  the  record  affords  plain  and  certain  proof 
of  the  amount  of  the  excess  so  that  it  may  with  safety  be  cor- 
rected, in  either  event  the  appellate  court  will  amend  and  affirm 

57.  Hobson  v.  Hobson,  100  Va.  216,  40  S.  E.  899. 

58.  See  ante,  §§  281,  290,  291. 

59.  Foreman  v.  Norfolk,  etc.,  Co.,  106  Va.  770,  56  S.  E.  805. 

60.  Kecoughtan  Lodge  v.  Steiner,  106  Va.  589,  56  S.  E.  569. 

61.  Buena  Vista  Co.  v.  McCandlish,  92  Va.  297,  23  S.  E.  781;  Wor- 
rell v.  Kinnear,  103  Va.  719,  49  S.  E.  988. 


§   392  APPEALS  OF  RIGHT  773 

the  judgment  of  the  trial  court,  and  will  not  remand  the  case  for 
such  amendment.62 

Where  a  party  is  put  on  terms  in  the  trial  court  to  release  a 
part  of  his  recovery  or  else  submit  to  a  new  trial,  and  he  makes 
the  release  and  takes  judgment  for  the  reduced  amount  he  will 
not  be  heard  in  the  appellate  court  (in  the  absence  of  a  statute 
permitting  it)  to  question  the  action  of  the  trial  court  in  this 
particular  upon  a  writ  of  error  granted  to  the  other  party.  Hav- 
ing accepted  the  verdict  he  cannot  thereafter  be  heard  to  ques- 
tion it.63  In  Virginia,  however,  it  is  now  provided  by  statute 
"that  in  any  action  at  law  in  which  a  circuit  or  corporation  court; 
or  any  other  law  court  of  record  shall  require  a  plaintiff  to  remit 
a  part  of  his  recovery,  as  ascertained  by  the  verdict  of  a  jury, 
or  else  submit  to  a  new  trial,  such  plaintiff  may  remit  and  ac- 
cept judgment  of  the  court  thereon  for  the  reduced  sum  under 
protest,  but,  notwithstanding  such  remitter,  and  acceptance, 
if  under  protest,  the  judgment  of  the  court  in  requiring  him  to 
remit  may  be  reviewed  by  the  Supreme  Court  of  Appeals  upon 
a  writ  of  error  awarded  the  plaintiff  as  in  other  actions  at  law; 
and  in  any  such  case  in  which  a  writ  of  error  is  awarded  the 
defendant,  the  judgment  of  the  court  in  requiring  such  remitter 
may  be  the  subject  of  review  by  the  Supreme  Court  of  Appeals, 
upon  a  cross  appeal  by  the  plaintiff,  as  in  other  actions  at  law."64 
Where  the  matter  in  dispute  is  merely  pecuniary,  it  would  seem 
that  if  a  plaintiff  applies  for  a  writ  of  error  on  the  ground  that 
the  verdict  in  his  favor  has  been  erroneously  reduced  by  the  trial 
court,  the  reduction  must  amount  to  at  least  the  sum  of  $300  in 
order  to  confer  jurisdiction  on  the  Court  of  Appeals,  and  the 
same  is  probably  true  if  he  assigns  cross  error  on  a  writ  of 
error  awarded  to  the  defendant.65 

§  392.    Appeals  of  right. 

A  writ  of  error  is  not  a  matter  of  right  in  Virginia.    As  here- 

62.  Aultman  v.  Gay,  108  Va.  647,  62  S.  E.  946;  Mclntyre  v.  Smith, 
108  Va.  736,  62  S.  E.  930;  Code,  §  3452;  Code  W.  Va.  4037;  ante,  §  373. 

63.  Lynchburg  Telephone  Co.  v.  Booker,  103  Va.  594,  50  S.  E.  148. 

64.  Acts   1906,   ch.   167,  p.   251. 

65.  Wilson  v.  Wilson,  93  Va.  546,  25  S.  E.  596. 


774  WRITS  OF  ERROR  §§  393-394 

inbefore  stated,  a  party  deeming  himself  aggrieved  is  required 
to  file  a  petition,  assigning  errors  committed  in  the  trial  court  to 
his  prejudice.  This  petition  is  submitted  to  the  judges  and 
passed  on  as  hereinbefore  indicated,  and  they  may  grant  or  re- 
fuse it,  as  in  their  judgment  is  right  and  proper,  and  a  failure 
to  grant  it  operates  as  an  affirmance  of  the  judgment  below.66 

§  393.    Refusal  or  dismissal  of  writ. 

Refusal  to  grant  a  writ  of  error,  or  the  dismissal  of  it  after 
it  has  been  granted,  operates  as  an  affirmance  of  the  judgment 
of  the  trial  court.67 

§  394.     Conclusion. 

Appellate  courts  do  not  sit  simply  to  correct  errors.  If  they 
did,  their  work  would  be  unending.  To  be  the  subject  of  review 
the  error  must  be  material,  and  must  be  prejudicial  to  the  in- 
terest of  the  party  complaining  of  it.68 

66.  McCue's  Case,  103  Va.  870,  49  S.  E.  623. 

67.  McCue's   Case,    103    Va.    870,    49    S.    E.    623;    Hicks   v.   Roanoke 
Brick  Co.,  94  Va.  741,  27  S.  E.  596;  Baker  v.  Watts,  101  Va.  702,  44 
S.  E.  929. 

68.  Bank  v.   Napier,   41    W.   Va.   481,  23   S.    E.   800;    Supervisors  v. 
Gorrell,  20  Gratt.  484;  Beirne  v.  Rosser,  26  Gratt.  at  p.  546. 


CHAPTER  XLV. 
EXTRAORDINARY  LEGAL  REMEDIES. 

§  395.  Mandamus. 
§  396.   Prohibition. 

Parties. 

Procedure. 
§  397.   Quo  warranto. 

Procedure. 
§  398.  Certiorari. 

§  395.    Mandamus. 

The  only  civil  remedies  in  common  use  that  may  be  desig- 
nated as  extraordinary  are  Mandamus,  Prohibition,  Quo  War- 
ranto, and  Certiorari.1  Of  these  some  brief  discussion  will  be 
given. 

Mandamus  is  a  remedial  writ,  issuing  usually  from  a  superior 
court,  directed  to  any  person,  corporation,  or  inferior  court,  re- 
quiring them  to  do  some  particular  thing,  therein  specified,  which 
pertains  to  their  duty  or  office,  and  concerning  the  doing  of 
which  they  have  no  discretion.  It  never  issues  to  control  the 
discretion  of  any  functionary.  It  will  be  issued,  for  instance,  to 
compel  a  clerk  to  record  a  deed,  to  compel  a  corporation  to  ex- 
hibit its  books  to  a  stockholder,  or  an  inferior  court  to  hear  and 
determine  a  cause,  but  it  cannot  be  issued  to  direct  what  judg- 
ment the  inferior  court  shall  enter.2  A  mandamus  will  not  be 
awarded,  however,  where  to  do  so  would  be  fruitless  or  un- 
availing. If  the  respondent  cannot  perform  the  act  required, 
or  if  the  court  is  unable  to  compel  its  performance,  the  writ  will 
be  denied.3  But  this  inability  may  cease  after  the  writ  has  been 
denied,  and,  upon  the  changed  state  of  facts,  the  writ,  though 
formerly  denied,  may  be  granted.  The  former  refusal  does  not 

1.  Habeas  Corpus  belongs  more  particularly  to  the  domain  of  crimi- 
nal law. 

2.  Broaddus  v.  Supervisors,  99  Va.  380,  38  S.  E.  177. 

3.  Mitchell  v.  Witt,  98  Va.  459,  36  S.   E.  528. 


776  EXTRAORDINARY  LEGAL  REMEDIES  §  395 

make  the  question  res  judicata,  though  it  would  have  been  but 
for  the  changed  state  of  facts.4 

While  mandamus  does  not  lie  in  favor  of  a  party  who  has 
another  clear  and  adequate  legal  remedy,  the  "adequate  remedy" 
which  will  bar  mandamus  must  be  such  as  reaches  the  end  in- 
tended, and  actually  compels  the  performance  of  the  duty  in 
question.  It  must  be  equally  as  convenient,  beneficial,  and 
effective  as  the  proceeding  by  mandamus.  The  function 
of  the  writ  is  to  enforce  the  performance  of  duties  grow- 
ing out  of  public  relations,  or  imposed  by  statute,  or  in  some 
respect  involving  a  trust,  or  official  duty.5  Thus  manda- 
mus may  issue  to  recover  books  of  a  predecessor  in  office,  and 
incidentally  to  try  the  title  to  the  office.  Neither  detinue  nor 
quo  warranto  are  adequate  remedies,  even  if  detinue  would  lie 
to  recover  the  books.  To  supersede  the  remedy  by  mandamus, 
the  party  must  not  only  have  a  specific  remedy,  but  one  compe- 
tent to  confer  relief  upon  the  very  subject  matter  of  litigation. 
and  one  which  is  equally  as  beneficial  as  the  proceeding  by 
mandamus.5 

Where  a  surety  is  entitled,  on  motion  to  a  proper  court,  to 
unconditional  relief  from  his  obligation,  if  such  court  refuses 
the  relief,  the  remedy  is  by  mandamus,  and  not  by  writ  of  error, 
as  the  duty  devolved  upon  the  court  is  purely  ministerial,  and 
involves  the  exercise  of  no  discretion.7 

So,  also,  after  a  controversy  has  been  settled  by  a  decree  of 
the  Court  of  Appeals,  and  the  rehearing  period  has  passed,  the 
questions  involved  cannot  thereafter  be  reopened  between  the 
same  parties,  and  mandamus  from  the  Court  of  Appeals  to  the 
trial  court  to  carry  into  effect  the  decree  of  the  Court  of  Ap- 
peals is  the  proper  remedy.8 

So  mandamus  will  lie  to  compel  the  judge  of  an  inferior 
court  to  sign  a  proper  bill  of  exception  which  he  has  refused 

4.  Winchester,   etc.,   R.   Co.   v.   Commonwealth,   106  Va.  264,   55   S. 
E.  692. 

5.  C.  &  O.  R.  Co.  v.  Scott,  109  Va.  34,  63  S.   E.  412. 

6.  Sinclair  v.  Young,  100  Va.  284,  40  S.   E.  907. 

7.  U.  S.  Fidelity  Co.  v.  Peebles,  100  Va.  585,  42  S.  E.  310;  State  v. 
Wood  Co.  Ct.,  33  W.  Va.  589,  11  S.  E.  72. 

8.  Miller  v.  Turner,  111  Va.  341,  68  S.   E.  1007. 


§    395  MANDAMUS  777 

to  sign  at  the  trial,  although  final  judgment  has  since  been 
entered  in  the  case,  as  the  party  has  no  other  legal  remedy  ;9 
but  if  he  refuses  to  sign  a  bill  certifying  the  facts  or  the  evidence, 
because  they  have  faded  from  his  memory  so  that  he  cannot 
do  so,  the  appellate  court  (while  it  cannot  award  a  manda- 
mus) will,  upon  proper  proceedings  had,  grant  the  party  ag- 
grieved a  new  trial.10 

Procedure  to  Obtain  the  Writ. — The  procedure  at  common 
law  and  formerly  in  Virginia  was  dilatory  and  complicated. 
Formerly,  the  party  aggrieved  filed  his  petition  before  the  su- 
perior tribunal,  setting  out  the  ground  of  the  application,  with- 
out notice  to  the  adverse  party.  The  petition  was  sworn  to,  and 
if  it  presented  a  prima  facie  case  a  rule  was  made  against  the 
adverse  party  to  show  cause  why  the  mandamus  should  not 
issue.  Upon  the  return  of  this  rule,  executed,  if  no  sufficient 
cause  was  shown  against  it,  a  conditional  mandamus  was  is- 
sued, returnable  at  a  specified  time,  by  which  the  party  was 
required  to  do  the  specific  thing,  or  show  cause  to  the  contrary. 
When  return  was  made  to  this  conditional  mandamus,  the  party 
suing  it  out  had  the  right  to  plead  to,  or  traverse,  all  or  any  of 
its  material  allegations,  to  which  the  person  making  the  return 
had  the  right  to  reply,  take  issue,  or  demur,  and  the  procedure 
was  as  in  -an  action  on  the  case  for  a  false  return.  At  common 
law  an  action  upon  the  case  lay  for  the  party  injured  against 
the  person  making  such  false  return ;  and  if,  in  such  action, 
the  return  was  falsified,  the  court  would  grant  a  peremptory 
mandamus.11 

Xow  the  procedure  is  much  simplified  by  statute  in  Virginia.12 
It  is  provided  that  the  application  shall  be  on  petition  verified 
by  oath,  after  the  party  against  whom  the  writ  is  prayed  has 
been  served  with  a  copy  of  the  petition  and  notice  of  the  in- 
tended application  a  reasonable  time  before  such  application  is 
made.  The  petition  is  to  state  plainly  and  concisely  the  ground 
of  the  application,  and  conclude  with  a  prayer  for  the  writ.  If 

9.  Collins  v.   Christian,  92  Va.  731,  24  S.  E.  472. 

10.  Powell  v.  Tarry,  77  Va.  250. 

11.  1   Rob.   Pr.    (old)   649-650. 

12.  Code,  Ch.  144,  §  SOllff. 


778  EXTRAORDINARY  LEGAL  REMEDIES  §  396 

no  defence  is  made  and  the  petition  states  a  case  proper  for  the 
writ,  a  peremptory  writ  is  awarded  with  costs.  If  the  defend- 
ant appears  and  makes  defence,  the  defence  is  to  be  by  de- 
murrer, or  answer  on  oath,  or  both.  If  either  party  demands 
a  jury,  the  court  or  judge  is  to  direct  such  issues  of  fact  as  may 
be  proper  to  be  tried  in  term ;  "and  whether  the  trial  be  had 
with  or  without  a  jury,  the  writ  peremptory  shall  be  awarded  or 
denied  according  to  the  law  and  facts  of  the  case,  and  with  or 
without  costs  as  the  court  or  judge  may  determine."13  The 
petition  for  the  writ  is  to  be  presented  to  the  court  having  ju- 
risdiction, or  to  the  judge  thereof  in  vacation,  unless  the  applica- 
tion be  to  the  Supreme  Court  of  Appeals.  If  the  application 
be  to  the  latter,  the  statute  declares  that  "The  case  shall  be 
heard  and  determined  without  a  jury,  and  witnesses  shall  not 
be  allowed  to  testify  viva  voce  before  the  court,  but  their  tes- 
timony, if  desired,  may  be  used  in  the  form  of  depositions  taken 
by  either  party  on  reasonable  notice  to  the  other,  or  his  attor- 
ney, of  the  time  and  place  of  taking  the  same."14 

§  396.    Prohibition.15 

It  is  said  that  no  definition  of  the  writ  of  prohibition  can 
properly  be  formulated  that  will  not  be  to  some  extent  at  va- 
riance with  adjudged  cases,16  but  the  definition  given  by  Black- 
stone  is  sufficient  for  our  present  purposes.  It  is  "the  name  of 
a  writ  issued  by  a  superior  court,  directed  to  the  judge  and  par- 
ties to  a  suit  in  an  inferior  court,  commanding  them  to  cease 
from  the  further  prosecution  of  the  same,  on  a  suggestion  that 
the  cause  originally,  or  some  collateral  matter  arising  therein, 
does  not  belong  to  that  jurisdiction,  but  to  the  cognizance  of 
some  other  court."17 

The  office  of  the  writ  of  prohibition  is  not  to  correct  error, 
but  to  prevent  the  exercise  of  jurisdiction  of  the  court  by  the 

13.  Code,  §  3016. 

14.  Code,  §  3017. 

15.  This  subject  is  very  fully  treated  in  a  note,  111  Am.  St.  Rep. 
929. 

16.  Note,  111  Am.  St.  Rep.  930. 

17.  3  Bl.  Com.   [112]. 


§    396  PROHIBITION  779 

judge  to  whom  it  is  directed,  either  where  he  has  no  jurisdiction 
at  all,  or  is  exceeding  his  jurisdiction.  If  the  court  or  judge  has 
jurisdiction  to  enter  any  order  or  decree  at  all  in  the  proceed- 
ing sought  to  be  prohibited  the  writ  does  not  lie.18  Although 
jurisdiction  of  the  person,  or  of  the  subject  matter,  may  have 
once  existed,  yet,  if  for  any  cause  it  has  been  lost,  the  writ 
may  issue.  For  example,  the  writ  of  prohibition  will  be  granted 
to  restrain  a  justice  from  allowing  a  new  trial  after  the  lapse 
of  more  than  thirty  days  after  judgment,  and  to  restrain  the 
defendant  from  proceeding  after  such  new  trial  has  been  al- 
lowed.19 So,  in  Virginia  and  West  Virginia,  if  there  has  been 
an  illegal  or  unauthorized  judgment,  the  writ  will  issue  to  pre- 
vent its  execution,  as,  where  a  justice  of  the  peace  has  rendered 
a  judgment  for  an  amount  in  excess  of  the  jurisdiction  of  the 
justice.  In  such  case,  the  plaintiff  may,  at  the  instance  of  the 
defendant,  be  restrained  from  executing  the  judgment  even 
after  the  constable  has  the  money  in  his  hands.20 

If  an  entire  debt  exceeding  one  hundred  dollars  has  been  di- 
vided into  smaller  notes,  all  of  which  are  due,  prohibition  will 
lie  at  the  instance  of  the  debtor  to  prevent  a  justice  of  the  peace 
from  taking  jurisdiction  and  rendering  judgment  thereon,  or 
from  enforcing  the  collection  of  a  judgment  already  rendered 
thereon,21  but  it  has  been  held  that,  where  separate  warrants 
have  proceeded  to  judgment  before  the  justice,  with  the  consent 
or  acquiescence  of  the  defendant,  the  judgment  cannot  there- 
after be  collaterally  assailed  by  other  persons.  This  result,  it  is 
said,  does  not  impinge  in  any  degree  upon  the  maxim  that  con- 
sent cannot  give  jurisdiction,  as  the  justice  had  jurisdiction  of 
the  amount  represented  in  each  judgment.22 

Prohibition  also  lies  to  prevent  the  enforcement  of  a  judgment 
by  default  where  the  defendant  had  no  notice  of  the  time  and  place 
of  trial,  and  was  not  present  thereat,23  or  to  restrain  a  judge 

18.  Fidelity  Co.  v.  Beale,  102  Va.  295,  46  S.  E.  307. 

19.  Burroughs  v.  Taylor,  90  Va.  55,  17  S.  E.  745. 

20.  Hutson  v.  Lowry,  2  Va.  Cas.  42;  James  v.  Stokes,  77  Va.  225; 
City  of  Charleston  v.  Beller,  45  W.  Va.  44,  30  S.  E.  152. 

21.  James  v.  Stokes,  supra. 

22.  Adams  v.  Jennings,  103  Va.  579,  49  S.  E.  982. 

23.  Simmons  v.  Thomasson,  50  W.  Va.  656,  41  S.   E.  335. 


780  EXTRAORDINARY  LEGAL  REMEDIES  §  396 

from  proceeding  in  a  cause  in  which  he  is  disqualified  by  reason 
of  interest,  though  the  court  over  which  he  presides  has  juris- 
diction of  such  matters.24  The  writ  of  prohibition,  however,  is 
issued  only  against  a  judicial  tribunal,  acting  in  a  judicial  ca- 
pacity, to  prevent  it  from  exceeding  its  jurisdiction,  hence  it 
will  not  issue  against  a  county  assessor  to  prevent  him  from 
issuing  a  liquor  license,  nor  against  a  county  court  to  prevent 
the  establishment  of  election  precincts  or  voting  places,  as  the 
latter  acts  are  not  judicial.25 

Generally,  the  writ  does  not  lie  if  the  party  complaining  has 
any  other  adequate  remedy  at  law.  Formerly  the  writ  of  pro- 
hibition was  not  often  resorted  to  in  Virginia;  the  first  re- 
ported case  of  a  writ  of  prohibition  which  came  before  the 
Court  of  Appeals  of  Virginia  being  in  1855,26  but  in  later  years 
it  has  been  of  frequent  use. 

In  many  jurisdictions  it  is  prescribed  as  a  condition  precedent 
to  the  exercise  of  the  power  to  issue  the  writ  of  prohibition  that 
objection  shall  be  interposed  in  the  court  whose  action  is  sought 
to  be  prohibited,  and  that  the  attention  of  that  court  shall  be 
thereby  or  otherwise  called  to  its  want  of  jurisdiction.27  This 
is  now  regulated  by  statute  in  Virginia. 

Parties. — Usually  the  petitioner  for  the  writ  is  some  party  to 
the  proceeding  sought  to  be  restrained,  but  it  is  said  that  this 
is  by  no  means  essential,  as  every  citizen  is  interested  in  re- 
straining courts  within  their  appropriate  jurisdictions.28  In 
some  jurisdictions  the  judge  of  the  inferior  court  is  the  only 
party  defendant,  but  the  general  rule  is  to  make  defendants  not 
only  the  judge  but  the  other  parties  who  are  prosecuting  the 
proceeding  in  his  court,  and  it  has  been  held  in  West  Virginia 

24.  Forest  Coal  Co.  v.  Doolittle,  54  W.  Va.  210,  46  S.  E.  238. 

25.  Hawk's  Nest  v.  Co.  Ct.,  55  W.  Va.  689,  48  S.  E.  205;  William- 
son v.  Mingo  Co.  Ct.,  56  W.  Va.  38,  48  S.  E.  835. 

26.  Mayo  v.  James,  12  Gratt.  17;   Hogan  v.  Guigon,  29  Gratt.  705. 
(For  a  list  of  cases  after  that  time,  see  note  of  Judge  Burks  in  29 
Grattan,  at  page  713.) 

27.  Note,  111  Am.  St.  Rep.  965-970;  Education  v.  Holt,  51  W.  Va. 
435,  41  S.  E.  337;  Knight  v.  Zahnhiser,  53  W.  Va.  370,  44  S.  E.  778; 
Jennings  v.  Bennett,  56  W.  Va.  146,  49  S.  E.  231. 

28.  Ill  Am.   St.  Rep.  970ff.     Compare  Adams  v.  Jennings,  103  Va. 
579,  49   S.    E.   982. 


§    397  QUO  WARRANTO  781 

that  it  is  error  not  to  make  a  party  interested  a  defendant  to 
the  proceeding.29 

Procedure. — The  procedure  in  Virginia  is  the  same  as  in  the 
case  of  mandamus,  and  is  regulated  entirely  by  statute.30  This 
statute  was  discussed  in  the  section  on  mandamus.  It  should  be 
noticed,  however,  with  reference  to  prohibition,  that  the  statute 
provides  that  "On  petition  for  a  writ  of  prohibition,  the  court, 
or  judge  in  vacation,  may,  at  any  time  before  or  after  the  ap- 
plication for  the  writ  is  made,  if  deemed  proper,  make  an  order, 
a  copy  of  which  shall  be  served  on  the  defendant,  suspending 
the  proceedings  sought  to  be  prohibited  until  the  final  decision 
of  the  cause."31 

§  397.    Quo  warranto. 

The  writ  of  quo  warranto  is  of  very  ancient  origin.  It  fell 
into  disuse  at  an  early  day,  and  was  substituted  by  an  informa- 
tion in  the  nature  of  a  writ  of  quo  warranto,  hence  in  the 
modern  cases  the  judges  frequently  speak  of  the  writ  of  quo 
warranto,  or  of  an  information  in  the  nature  of  such  a  writ.  It 
commanded  the  respondent  to  show  by  what  authority  (quo 
warranto)  he  exercised  the  franchise  of  an  office,  either  because 
there  had  never  been  any  grant  of  the  franchise,  or  it  had  been 
forfeited  by  neglect  or  abuse.32  Judge  Burks,  in  his  address 
before  the  Bar  Association  of  Virginia  in  1891,  says:  "The 
proceeding  by  writ  of  quo  warranto  or  information  in  the  nature 
of  a  writ  of  quo  warranto  seems  to  have  been  little  understood 
in  Virginia,  and  has  seldom  been  resorted  to  in  practice;  other 
indirect  methods  being  often  pursued  when  the  writ  or  informa- 
tion was  the  appropriate  method."33  The  cases  in  which  the 
writ  may  be  awarded  in  Virginia  are  set  out  in  the  statute.34 

29.  Armstrong  v.  Taylor,  15  W.  Va.  190. 

30.  Code,  ch.  144. 

31.  Code,  §  3018. 

32.  22  Am.   &  Eng.    Encl.   Law.   596-597. 

33.  Judge   Burks'  address,  page  23. 

34.  3022.      "In    What    Cases,    Writ   of    Quo    Warranto    Awarded. — A 
writ  of  quo  warranto  may  be  awarded  and  prosecuted  in  the  name  of 
the  state  of  Virginia,  in  any  of  the  following  cases,  to  wit: 

"First,  Against  a  corporation  (other  than  a  municipal  corporation) 
for  a  misuse  or  non-use  of  its  corporate  privileges  and  franchises. 


782  EXTRAORDINARY  LEGAL  REMEDIES 

These  seem  to  be  substantially  the  same  as  those  existing  at 
common  law,  and  in  construing  this  statute,  it  has  been  held 
that  the  statute  was  not  intended  to,  and  does  not,  narrow  the 
proceeding  so  as  to  make  the  writ  applicable  only  where  the  in- 
cumbent is  a  mere  usurper  or  intruder,  without  color  or  pretense 
of  title.35  Neither  at  common  law,  nor  under  the  statute,  is  the 
applicant  entitled  to  the  writ  as  a  matter  of  right,  but  whether 
it  shall  be  awarded  or  not  lies  within  the  exercise  of  judicial 
discretion.36  It  is  the  appropriate  method  to  test  the  title  to  an 
office,37  but,  being  an  extraordinary  remedy,  it  generally  does  not 
lie  where  the  party  aggrieved  can  obtain  full  and  adequate  relief 
in  the  usual  course  of  proceedings  at  law,  or  by  the  ordinary 
forms  of  civil  action.38  Generally  a  private  person  cannot 
prosecute  the  writ  unless  he  has  some  special  interest  in  the 
matter  in  controversy.  While  the  proceeding  is  in  its  nature 
civil  rather  than  criminal,  the  writ  must,  as  a  rule,  be  prosecuted 
in  the  name  of  some  public  officer,  but  may  also  be  prosecuted 
at  the  instance  of  a  private  person,  called  the  relator,  where  his 
interest  is  one  in  which  the  public  is  also  interested  or  concerned. 
Where  the  interest  is  public,  the  writ  may  generally  be  prose- 
cuted in  the  name  of  the  state  at  the  relation  of  the  attorney 
general,  or  the  prosecuting  attorney  of  some  county  or  corpora- 
tion. In  the  absence  of  statutory  provision,  the  mere  interest  of 

or  for  the  exercise  of  a  privilege  or  franchise  not  conferred  upon  it 
by  law,  or  where  a  charter  of  incorporation  has  been  obtained  by  it 
from  a  court  or  the  state  corporation  commission  for  a  fraudulent 
purpose,  not  authorized  by  law; 

"Second,  Against  a  person  for  the  misuse  or  non-use  of  any  privi- 
lege and  franchise  conferred  upon  him  by  or  in  pursuance  of  law; 

"Third,  Against  any  person  or  persons  acting  as  a  corporation 
(other  than  a  municipal  corporation)  without  authority  of  law;  and 

"Fourth,  Against  any  person  who  shall  intrude  into  or  usurp  any 
public  office.  But  no  such  writ  shall  be  awarded  or  prosecuted 
against  any  person  now  in  office  for  any  cause  which  would  have 
been  available  in  support  of  a  proceeding  to  contest  the  election  of 
such  person  to  such  office." 

35.  Watkins  v.  Venable,  99  Va.  440,  39  S.  E.  147. 

36.  Watkins  v.  Venable,  supra. 

37.  Bland  County  Judges,  33  Gratt.  443. 

38.  23  Am.   &   Eng.   Encl.   Law   (2nd   Ed.)    607. 


§    397  QUO  WARRANTO  783 

a  party  as  a  citizen  and  tax-payer  does  not  give  him  the  right 
to  prosecute  the  writ  in  his  name  as  relator.  Thus,  where  two 
parties  are  opposing  candidates  for  the  office  of  sheriff,  and  the 
one  receiving  the  highest  number  of  votes  for  the  office  disqual- 
ifies himself  from  holding  the  same,  this  fact  does  not  confer 
any  interest  in  the  office  on  the  party  receiving  the  next  highest 
number  of  votes  at  the  election.39  Where  the  writ  is  issued  to 
try  the  title  to  an  office  the  amount  of  the  salary  of  the  officer 
is  wholly  immaterial  on  a  question  of  the  jurisdiction  of  the 
Court  of  Appeals,  as  the  matter  in  controversy  is  one  that  is  "not 
merely  pecuniary."40 

Procedure. — In  Virginia  the  application  may  be  for  either  a 
writ  of  quo  warranto,  or  an  information  in  the  nature  of  a  writ 
of  quo  warranto.  In  either  event,  the  application  is  by  petition 
to  the  court  having  jurisdiction  of  the  subject  matter.  The  pe- 
tition may  be  filed  either  by  the  attorney  general,  or  by  any  at- 
torney for  the  commonwealth  of  any  county  or  corporation,  or, 
if  upon  being  requested,  they  fail  or  refuse  to  apply  for  the  writ, 
any  person  interested  may  present  his  petition  for  the  same. 
The  petition  must  be  in  writing,  and  may  be  applied  for  to  the 
circuit  or  corporation  court,  or  to  the  judge  thereof  in  vacation, 
and  if  the  court  adjudges  it  a  proper  case  for  the  writ  to  issue, 
an  order  is  made  directing  that  the  petition  be  filed,  and  award- 
ing a  summons  against  the  defendant  to  answer  the  same,  re- 
turnable to  the  next  term  of  court.  If  it  is  applied  for  by  a  pri- 
vate individual  the  statute  provides  that  "it  shall  not  be  issued 
until  the  relator  shall  have  given  bond  with  sufficient  surety  (if 
such  bond  be  required  by  the  court  or  judge),  to  be  approved  by 
the  clerk,  in  such  penalty  as  the  court  or  judge  shall  prescribe, 
with  condition  that  the  relator  shall  pay  all  such  costs  and  ex- 
penses as  may  be  incurred  by  the  state  in  the  prosecution  of  the 
writ,  in  case  the  same  shall  not  be  recovered  from  and  paid  by 
the  defendant  therein."41  The  summons  is  to  be  served  as  a 
notice  is  served.  If  the  defendant  fails  to  appear  the  court  may 
hear  proof  of  the  allegations  of  the  petition  or  information,  and 

39.  State  r.  Matthews.  44  W.  Va.  372.  29  S.  E.  994. 

40.  Watkins  v.  Venable,  supra. 

41.  Code,  §  3024. 


784  EXTRAORDINARY  LEGAL  REMEDIES  §  398 

if  they  be  sustained  shall  give  judgment  accordingly.  If  the  de- 
fendant appear  before  the  end  of  the  next  term  after  the  service 
of  the  writ  or  summons,  or  thereafter  before  judgment  is  ren- 
dered against  him,  he  may  demur,  or  plead  not  guilty,  or  both, 
to  the  writ,  or  demur  or  answer  in  writing,  or  both,  to  such  in- 
formation, and  every  allegation  contained  in  the  information 
which  is  not  denied  by  the  answer  shall  be  taken  as  true,  and  no 
proof  thereof  required.  Provision  is  also  made  for  reopening 
the  case  at  the  next  term  after  it  was  decided,  by  a  defendant 
who  was  proceeded  against  by  publication.  If  the  defendant  is 
found  guilty,  the  court  is  required  to  give  such  judgment  as  is 
appropriate  and  authorized  by  law,  and  for  the  costs  incurred 
in  the  prosecution  of  the  writ  or  information,  including  an  at- 
torney's fee  of  not  less  than  ten  nor  more  than  fifty  dollars,  to 
be  fixed  by  the  court.  It  is  further  provided  by  the  statute  in 
Virginia  that  if  the  defendant  be  found  guilty  as  to  a  part  only 
of  the  charges,  the  verdict  shall  be  guilty  as  to  such  part,  and 
shall  particularly  specify  the  same,  and  as  to  the  residue  of  such 
charges  the  verdict  shall  be  not  guilty.42 

§  398.    Certiorari. 

Certiorari  is  an  extraordinary  remedy  resorted  to  for  the  pur- 
pose of  supplying  a  defect  of  justice  in  cases  obviously  entitled 
to  redress  and  yet  unprovided  for  by  the  ordinary  forms  of  pro- 
ceedings. It  is  not  a  proper  remedy  where  another  adequate 
remedy  is  available.43  It  is  generally  issued  by  a  superior  court 
to  an  inferior  court  of  record,  requiring  the  latter  to  send  into 
the  former  some  proceeding  therein,  or  the  record  or  proceed- 
ings in  some  cause  already  terminated,  in  cases  where  the  pro- 
cedure is  not  according  to  the  course  of  the  common  law,44  but 
it  has  been  said  that  it  is  also  used  in  Virginia  to  bring  up  the 
proceedings  before  a  justice  of  the  peace,  with  a  view  to  inquiry 
into  their  regularity.45  This  use  of  the  writ,  however,  has  fallen 
into  practical  disuse  in  Virginia.  An  appeal  lies  from  the  de- 

42.  Code,  Chapter  145. 

43.  Poe  v.  Marion  Mach.  Wks.,  24  W.  Va.  517. 

44.  4  Encl.  PI.  &  Pr.  8. 

45.  4  Min.   Inst.   1259. 


§  398  CERTIORARI  785 

cision  of  a  justice  of  the  peace  where  the  amount  in  controversy, 
exclusive  of  interest  and  costs,  is  greater  than  ten  dollars,  and 
the  extensive  power  given  to  the  appellate  court  of  correcting 
the  errors  and  irregularities  of  the  justice46  makes  any  use  of 
the  writ  of  certiorari  in  proceedings  before  a  justice  of  the  peace 
wholly  unnecessary.  In  Virginia,  practically  the  only  use  made 
of  the  writ  of  certiorari  is  by  the  Court  of  Appeals,  to  obtain  a 
fuller  or  more  perfect  record  wjien  a  complete  record  has  not 
been  furnished.  After  notice  to  the  adverse  party  the  court  di- 
rects its  clerk  to  issue  the  directions  of  the  appellate  court  to  the 
clerk  of  the  inferior  court,  requiring  the  latter  to  certify  to  the 
Court  of  Appeals  such  parts  of  the  record  as  the  court  may  deem 
necessary  and  proper,  and  which  are  usually  set  forth  in  the 
order.  In  West  Virginia,  a  much  more  extensive  use  is  made 
of  the  writ  than  in  Virginia.  The  use  of  the  writ  in  West  Vir- 
ginia is  well  set  forth  by  Judge  Snyder  in  Poe  v.  Machine  Works, 
24  W.  Va.  520,  in  which  he  reviews  all  of  the  prior  cases.47 

46.  Code,  §  2939. 

47.  The  proceedings  upon  writ  of  certiorari  are  given  in  McConiha 
v.   Guthrie,  24  W.  Va.   124. 


CHAPTER  XLVI. 
HOMESTEADS  AND  EXEMPTIONS. 

§  399.  What  is   a   homestead. 

§  400.  History  of  Virginia  Statute. 

§  401.  Constitutional  provisions. 

§  402.  Who'  may  or  may  not  claim  the  homestead. 

For  whose  benefit. 

Nature  of  the  estate. 
§  403.  What  may  be  claimed. 
§  404.  How  and  when  to  be  claimed. 

§  405.  Effect  of  homestead  on  debts  or  claims  of  creditors. 
§  406.  Waiver  of  the  homestead. 
§  407.  Prior  liens. 

§  408.  Effect  of  will  of  householder. 
§  409.  Deed  of  trust  or  mortgage. 
§  410.  Power  over  homestead. 
§  411.  Income,  increase  and  betterments. 
§  412.  Excessive  homestead. 

§  413.  How  claims  superior  to  homestead  enforced. 
§  414.  Cessation  of  homestead. 
§  415.  Poor  debtors'  exemption. 

§  399.    What  is  a  homestead. 

The  word  "homestead"  in  its  usual  legal  significance  means 
the  house  and  curtilage  set  apart  for  the  family  residence,  and 
exempt  from  forced  sales  for  the  debts  of  the  householder. 
Homestead  laws  are  wholly  creatures  of  statute.1  They  were  un- 
known to  the  common  law,  and,  notwithstanding  the  many  en- 
comiums passed  upon  them  and  the  policy  which  dictated  their 
enactment,  the  fact  remains  that  they  generally  enable  debtors 
to  screen  their  property  from  the  payment  of  their  just  debts ; 
and,  whatever  may  be  said  in  commendation  of  a  statute  which 
provides  a  real  "home"  for  the  family,  it  can  hardly  justify  the 
enactment  of  a  law  which  enables  the  debtor  to  claim  a  "home- 
stead" in  every  kind  of  perishable  property. 

1.  The  subject  is  so  far  statutory  that  the  pres.ent  discussion  is 
confined  almost  exclusively  to  the  Virginia  statute. 


§   400  HISTORY  OF  VIRGINIA  STATUTE  787 

§  400.    History  of  Virginia  statute. 

As  the  legislature  of  the  state  has  power  to  pass  any  law  not 
prohibited  by  the  constitution  of  the  state,  or  of  the  United 
States,  there  is  no  reason  why  a  homestead  may  not  be  created 
as  well  by  statute  as  by  constitutional  provision.2 

The  first  homestead  law  enacted  in  Virginia  was  an  act  ap- 
proved April  29,  1867.3  The  next  homestead  law  in  Virginia 
was  created  by  the  constitution  of  1869,  and  was  put  into  opera- 
tion by  an  act  of  Assembly  approved  June  27,  1870.  The  con- 
stitutional provision  was  not  self-executing,  but  required  legis- 
lation to  put  it  into  effect.4  The  present  homestead  law  of 
Virginia  was  created  by  the  constitution  of  1902,  and  was  put 
into  operation  by  the  Acts  of  1902-3-4,  page  868.  The  consti- 
tution also  continued  in  operation  to  a  certain  extent  the  former 
homestead  law,  with  some  few  modifications.5 

The  homestead  created  by  the  law  of  Virginia  is  not  a  "home- 
stead" in  any  true  sense  of  the  word,  but  is  an  exemption,  pure 
and  simple.  It  may  be  claimed  not  only  in  real  estate,  but  in 
any  personal  property  whatever,  however  perishable  its  nature. 
Some  important  changes  have  been  made  by  the  present  consti- 
tution and  Acts  of  Assembly  in  pursuance  thereof.  In  the  first 
paragraph  of  §  190  of  the  constitution,  the  following  language 
is  new :  "If  the  property  purchased  and  not  paid  for  be  ex- 
changed for  or  converted  into  other  property  by  the  debtor, 
such  last-named  property  shall  not  be  exempt  from  the  payment 
of  such  unpaid  purchase  money  under  the  provisions  of  this 
article."  Whether  or  not  this  changed  the  existing  law  it  is  not 
material  to  inquiry.  Under  the  former  law,  it  was  more  than 
doubtful  whether  the  homestead  could  be  claimed  in  a  shifting 
stock  of  merchandise.6 

It  had  become  fixed  by  judicial  decisions  in  Virginia  that  the 

2.  Hatorff  v.  Wellford,  27   Gratt.  356;   Moran  v.   Clark,  30  W.  Va. 
358,  4  S.  E.  303. 

3.  Acts  1866-7,  page  962. 

4.  Oppenheim  v.  Myers,  99  Va.  582,  585,  39  S.  E.  218. 

5.  Constitution  of  Virginia   (1902),  §  193. 

6.  Rose  v.  Sharpless,  33  Gratt.  153;  In  re  Tobias,  6  Va.  Law  Reg. 
297,  302. 


788  HOMESTEADS  AND  EXEMPTIONS  §    401 

homestead  could  be  claimed  in  property  which  the  claimant  had 
conveyed  to  another,  but  which  conveyance  had  been  set  aside 
on  the  ground  of  fraud,  or  want  of  consideration.  By  §  191  of 
the  present  constitution,  it  is  expressly  provided  that  "the  ex- 
emption shall  not  be  claimed  or  held  in  a  shifting  stock  of  mer- 
chandise, or  in  any  property  the  conveyance  of  which  by  the 
homestead  claimant  has  been  set  aside  on  the  ground  of  fraud, 
or  want  of  consideration."  But  after  goods  have  been  sur- 
rendered to  a  trustee  in  bankruptcy,  they  lose  their  shifting  char- 
acter, and  a  homestead  may  be  claimed  in  them.7  If,  however, 
the  bankrupt  has  intermingled  goods  paid  for  with  those  not 
paid  for,  and  seeks  to  claim  a  homestead  in  those  paid  for,  the 
burden  of  proof  is  on  the  bankrupt  to  show  which  of  the  goods 
have  been  paid  for.8 

The  constitution  of  1869  provided  that  "nothing  contained  in 
this  article  shall  be  construed  to  interfere  with  the  sale  of  the 
property  aforesaid,  or  any  portion  thereof  by  virtue  of  any 
mortgage,  deed  of  trust,  pledge  or  other  security  thereon."  This 
provision  is  wholly  omitted  from  the  present  constitution.  The 
words  "other  security"  had  been  several  times  the  subject  of 
judicial  construction,  and  the  decisions  had  not  been  harmonious. 

Both  constitutions  provide  that  "the  General  Assembly  shall 
prescribe  the  manner  and  the  conditions  on  which  a  householder 
or  head  of  a  family  shall  set  apart  and  hold  for  himself  and  fam- 
ily" a  homestead  in  his  property,  but  that  this  section  "shall  not 
be  construed  as  authorizing  the  General  Assembly  to  defeat  or 
impair  the  benefits  intended  to  be  conferred  by  the  provisions  of 
this  article." 

§  401.    Constitutional  provisions. 

It  is  held  by  some  courts  that  where  the  constitution  exempts 
a  homestead  "not  exceeding"  a  certain  amount  to  particular  in- 
dividuals, the  legislature  may  enlarge  the  amount  (as  in  Ala- 
bama) while  other  courts  hold  that  the  exemption  cannot  be 
enlarged  (as  in  Michigan  and  South  Carolina).  The  same  dif- 

7.  In  re  Tobias  (D.  C.),  103  Fed.  68;  6  Va.  Law  Reg.  297. 

8.  In   re  Tobias,  supra. 


§    402  WHO  MAY  OR  MAY  NOT  CLAIM  THE;  HOMESTEAD  789 

ference  of  opinion  exists  as  to  the  persons  entitled  to  claim.* 
In  Virginia,  where  the  constitution  declares  that  "every  house- 
holder or  head  of  a  family"  may  claim  the  exemption,  it  has  been 
held  that  an  act  extending  the  right  to  a  widow  and  minor  chil- 
dren is  valid.10 

It  is  generally  held  everywhere  that  neither  by  constitution  nor 
statute  can  an  exemption  be  created  which  .will  be  good  against 
prior  debts,  as  such  provisions  or  enactments  would  be  repug- 
nant to  that  clause  of  the  constitution  of  the  United  States  which 
prohibits  a  state  from  passing  any  law  impairing  the  obligation 
of  a  contract.11 

§  402.    Who  may  or  may  not  claim  the  homestead. 

The  constitution  declares :  "Every  householder  or  head  of  a 
family"  shall  be  entitled  to  hold,12  while  the  Code  declares  that 
"Every  householder  residing  in  this  state"  shall  be  entitled  to 
hold.  There  was  the  same  difference  between  the  constitution  of 
1869  and  the  Code.  The  Court  of  Appeals  held,  in  construing 
the  Act  of  1870,  which  put  into  effect  the  constitution  of  1869, 
that  "householder"  and  "head  of  a  family"  had  the  same  mean- 
ing in  the  provisions  of  the  constitution  and  statutes  relating  to 
homesteads,  and  that  in  order  to  constitute  a  householder,  or 
head  of  a  family,  there  must  exist  the  relation  of  dependence  and 
support  coupled  with  a  legal  or  moral  duty  on  the  part  of  the 
householder  to  support  the  dependent.  A  mere  aggregation  of 
individuals,  for  example,  a  fraternity  living  together  in  a  house, 
is  not  sufficient;  the  aggregation  must  constitute  a  family  of 
which  there  must  be  a  master  or  chief.  No  particular  number 
is  necessary  to  constitute  a  family,  though  there  must,  at  the 
time  the  claim  is  made,  be  at  least  two.13  There  seems  to  be  no 
restriction  upon  who  may  be  a  head  of  a  family.  But  there  must 
be  an  obligation,  legal  or  moral,  on  the  part  of  the  head  to  sup- 

9.  15  Am.  &  Eng.   Encl.  Law   (2nd   Ed.)   530. 

10.  Hatorff  v.  Wellford,  27  Gratt.  356;  Helm  v.  Helm,  30  Gratt.  404. 

11.  Homestead  Cases,  22  Gratt.  266. 

12.  Va.  Constitution  (1902),  §  190. 

13.  Calhoun  v.  Williams,  32  Gratt.  18;  Oppenheim  v.  Myers,  99  Va. 
582,  39   S.   E.  218. 


790  HOMESTEADS  AND  EXEMPTIONS  §    402 

port  the  family,  and  a  corresponding  state  of  dependence  on  the 
part  of  those  who  answer  the  description  of  the  family.14  It  has 
been  held  that  a  married  woman  might  claim  the  homestead, 
though  living  with  her  husband,  and  though  he  contributed  to 
the  support  of  the  family,  provided  she  managed  the  house  and 
the  family,  and  was  regarded  by  the  family  as  its  head,  and  that 
the  circumstance  that  the  husband  assists  in  the  support  of  the 
family  -and  has  already  claimed  the  benefit  of  the  "poor  law" 
as  head  of  the  family,  will  not  deprive  the  wife  of  the  right  to 
claim  the  exemption.15  The  authorities  upon  the  question  of  the 
right  of  a  wife  to  claim  a  homestead,  are  in  serious  conflict,  but 
it  seems  to  be  a  rather  anomalous  family  that  can  have  one  head 
to  claim  the  "poor  law"  and  another  to  claim  the  "homestead."16 
On  the  other  hand,  in  another  case,  the  court,  without  deciding 
whether  a  wife  might  not  under  some  circumstances  be  the  head 
of  a  family,  decided  that  a  married  woman  whose  husband  lives 
out  of  the  state,  but  visits  her  at  intervals  of  two  or  three  years, 
and  occasionally  makes  her  small  remittances  of  money,  and  who 
has  no  children  dependent  upon  her  for  support,  is  not  a  house- 
holder or  head  of  a  family  in  contemplation  of  the  constitution 
and  the  statutes  passed  in  pursuance  thereof.17 

As  the  constitution  confers  the  right  on  a  "householder  or  head 
of  a  family,"  the  right  to  claim  a  homestead  must  be  determined 
by  the  language  of  the  constitution,  and  not  by  that  of  the  stat- 
utes made  in  pursuance  thereof.  At  all  events,  if  the  right  is 
conferred  by  the  constitution,  it  cannot  be  taken  away  by  statute. 

While  it  is  necessary  that  there  should  be  a  head,  it  is  equally 
necessary  that  there  should  be  a  family.  An  unmarried  man 
with  no  children  or  other  persons  dependent  upon  him,  living 
with  him,  is  not  a  householder  within  the  meaning  of  the  act. 
Doubtless,  if  one  has  legally  adopted  children  and  has  assumed 
or  had  imposed  upon  him  the  duty  of  their  support,  he  would  be 
entitled  to  claim  the  exemption ;  but  the  mere  fact  that  one  has 

14.  Monographic   Note  in  70  Am.    St.   Rep.   107. 

15.  Richardson  v.  Woodward   (C.  C.  A.),  104  Fed.  873;  contra,  see 
Rosenberg  v.  Jett,  72  Fed.  90. 

16.  6  Va.  Law  Reg.  526,  661;  Note  70  Am.  St.  Rep.  111. 

17.  Oppenheim  v.  Myers,  supra. 


§    402         WHO  MAY  OR  MAY  NOT  CLAIM  THE  HOMESTEAD  791 

taken  the  children  of  another  into  his  family,  when  there  was  no 
duty  upon  him  to  support  them,  and  no  dependence  upon  the 
part  of  the  children,  would  not  constitute  him  a  head  of  a  fam- 
ily. And  even  where  the  children  are  adopted,  it  must  be  done 
in  good  faith,  and  not  merely  for  the  purpose  of  giving  a  right 
to  the  exemption.18  As  to  the  effect  of  the  destruction  of  the 
family,  see  infra. 

The  words  "residing  in  this  state"  were  inserted  in  the  Code, 
but  were  not  in  the  former  law.  They  are,  however,  merely 
declaratory  of  the  existing  law.  It  had  been  decided  under  the 
original  act  before  the  insertion  of  these  words  that  the  house- 
holder must  reside  in  the  state  to  be  entitled  to  the  exemption.19 
In  Clendenning  v.  Conrad,  91  Va.  410,  21  S.  E.  818,  the  house- 
holder claimed  a  homestead  in  the  proceeds  of  the  sale  of  real 
estate,  and  there  was  an  order  to  pay  the  same  to  him,  but 
before  payment  he  died,  and  his  infant  children  removed  to 
West  Virginia.  The  non-resident  guardian  filed  his  petition  in 
the  case,  setting  out  the  facts  and  asking  permission  to  remove 
the  $2,000,  which  represented  the  homestead,  to  the  state  of  West 
Virginia,  and  there  was  a  decree  accordingly.  Subsequently  he 
was  required  to  give  bond  and  security,  with  condition  to  have 
the  principal  forthcoming  on  the  termination  of  the  homestead 
estate.  But  neither  in  the  briefs  of  counsel,  nor  in  the  opinion 
of  the  court,  is  any  suggestion  made  that  the  homestead  termi- 
nated by  virtue  of  the  removal.  It  is  possible  that  the  counsel 
may  have  taken  the  view  that  the  removal  did  not  terminate  the 
homestead,  because  infants  cannot  control  their  domicile ;  and 
the  court  may  have  coincided  in  this  view,  or  else  simply  con- 
tented itself  with  affording  the  relief  prayed.  At  all  events  the 
point  is  not  mentioned. 

For  Whose  Benefit. — The  primary  object  of  a  homestead  law 
is  to  provide  for  the  family,  and  to  enable  the  person  to  whom 
the  right  is  given  to  provide  a  home  for  the  family,  and  to  pro- 
tect them  from  suffering  and  want,  but  the  phraseology  of  the 
different  laws  will  have  to  determine  who  are  the  beneficiaries. 

18.  15  Am.  &  Eng.  End.  Law  (2nd  Ed.)  540,  541. 

19.  Lindsay  v.  Murphy,  76  Va.  428;   Blose  v.   Bear,  87  Va.   177,  12 
S.  E.  294. 


792  HOMESTEADS  AND  EXEMPTIONS  §    402 

Section  192  of  the  constitution,  following  the  constitution  of 
1869,  provides  that  the  General  Assembly  shall  prescribe  the 
manner  and  conditions  on  which  a  householder  or  head  of  a  fam- 
ily shall  select  and  hold  for  himself  and  family  a  homestead. 
This  language,  it  is  said,  makes  the  householder  himself  one  of 
the  beneficiaries,  and  if  the  right  to  claim  the  homestead  by  rea- 
son of  being  the  head  of  the  family  existed  at  the  time  it  was 
claimed,  it  is  argued  that  it  is  not  lost  by  the  death  of  all  the 
members  of  the  family,  except  the  head.20  The  language,  how- 
ever, may  mean  that  the  householder  is  to  enjoy  the  benefits  of 
the  homestead  along  with  the  family  so  long  as  the  family  exists, 
and  this  seems  to  have  been  the  construction  put  upon  it  by  the 
Revisers  of  1887.  In  Judge  Burks'  address  before  the  Bar  Asso- 
ciation,21 it  is  said :  "The  Code  declares  when  the  right  of  ex- 
emption shall  cease.  Among  other  periods  fixed  for  its 
termination,  it  is  enacted  that  it  shall  cease  whenever  the  house- 
holder ceases  to  be  such.  It  was  assumed  by  the  revisors,  as 
without  question,  that  it  was  competent  for  the  legislature  so  to 
enact;  but  doubt  is  supposed  to  be  thrown  upon  the  correctness 
of  the  assumption  by  a  quite  recent  decision  of  the  Court  of  Ap- 
peals under  the  former  law  [referring  to  Wilkinson  v.  Merrill, 
supra,]  in  which  it  seems  to  be  held  that  the  constitution  fixes 
the  right,  and  that  when  once  the  property  is  set  apart  to  the 
householder  as  exempt,  it  continues  exempt  to  him,  though  he 
afterwards  ceases  to  be  a  householder  or  head  of  a  family." 

Nature  of  the  Estate. — Courts  are  much  divided  as  to  whether 
a  homestead  is  an  estate,  or  a  mere  privilege.  It  is  certain  that 
the  claim  of  a  homestead  cannot  in  any  wise  improve  the  title 
of  the  claimant.  It  has  been  held  that  the  homestead  is  a  unit, 
and  does  not  consist  of  a  life  estate  in  land  with  a  remainder 
over,  and  that  the  claimant,  when  the  law  is  complied  with,  gets 
the  whole  estate  in  the  land ;  and  where  a  husband  is  the  claim- 
ant, he  has  the  right,  his  wife  uniting,  to  sell  or  convey  the  home- 
stead or  consume  it  in  any  other  way  recognized  by  law.  This 
simply  shows  that  the  fee  is  set  apart,  and  may  be  aliened  or 

20.  6  Va.  Law  Reg.  143;  Wilkinson  v.  Merrill,  87  Va.  513,  12  S.  E. 
1015. 

21.  Judge  Burks'  Address,  2  Bar.  L.  Pr.,  pp.  1401,  1402. 


§    403  WHAT   MAY  BE)  CLAIMED  793 

consumed  without  accountability  to  anyone.22  Section  3631  of 
the  Code  provides  that  in  order  to  secure  the  benefit  of  the  ex- 
emption provided  by  the  preceding  section,  the  "householder" 
shall  by  writing  declare  his  intention  to  claim  it,  etc.,  and  in  con- 
struing this  section,  it  was  in  effect  held  that  this  was  a  personal 
privilege  which  the  householder  must  himself  exercise ;  that  he 
would  not  be  compelled  to  do  it,  nor  could  anyone  do  it  for  him, 
and  hence  if  he  failed  to  set  it  apart,  no  homestead  could  be 
claimed  during  his  lifetime.  This  seems  to  liken  the  exemption 
to  a  privilege.23  Upon  the  death  of  a  householder,  who  has  set 
apart  a  homestead  in  land,  his  widow  does  not  take  a  life  estate 
in  the  land,  but  she  and  the  minor  children  simply  hold  it  ex- 
empt, as  before,  from  liability  for  certain  debts.  Neither  the 
constitution  nor  the  statute  giving  the  householder  the  right  to 
claim  a  homestead  creates  or  vests  in  either  the  householder  or  his 
widow  any  other  or  different  estate  from  that  which  they  held 
before.  The  right  of  the  widow,  upon  the  death  of  the  house- 
holder, is  a  mere  personal  right  to  occupy  and  possess  the  prem- 
ises unaccompanied  by  any  new  or  additional  title  to  or  property 
interest  therein.  The  taxes  on  the  property  are  not  to  be  as- 
sessed against  the  widow  as  a  life  tenant,  but  are  to  be  assessed 
as  other  real  estate  of  the  householder.24 

§  403.    What  may  be  claimed. 

The  exemption  may  be  set  apart  in  real  or  personal  property 
of  the  claimant,  or  both,  including  money  and  debts  due  him, 
to  an  amount  not  exceeding  $2,000.  It  may  be  claimed  in  prop- 
erty held  as  joint  tenant,  coparcener,  or  tenant  in  common,  and  in 
equitable  as  well  as  legal  estates.  The  only  restriction  put  upon 
the  claimant  is  that  "the  said  exemption  shall  not  be  claimed  or 
held  in  a  shifting  stock  of  merchandise,  or  in  any  property  the 
conveyance  of  which  by  the  homestead  claimant  has  been  set 
aside  on  the  ground  of  fraud,  or  want  of  consideration."25 

22.  Va.-Tenn.  C.  &  I.  Co.  v.  McClelland,  98  Va.  424,  36  S.  E.  479. 

23.  Wray    v.    Davenport,    79    Va.    19.     In  Calhoun  v.  Williams,  32 
Gratt.  18,  20,  it  is  spoken  of  as  a  privilege.     Also  in  Linkenhoker  v. 
Detrick.  81  Va.  44,  56. 

24.  Murphy  v.  Richmond,  111  Va.  459,  69  S.   E.  442. 

25.  Va.   Constitution   (1902),  §§   190,   191;   Code,  §§   3630,  3631,  3632, 
and  3633. 


794  HOMESTEADS  AND  EXEMPTIONS  §    404 

§  404.    How  and  when  to  be  claimed. 

When  the  householder  is  alive,  the  exemption  is  to  be  claimed 
by  a  writing  signed  by  him  and  duly  admitted  to  record — to  be 
recorded  as  deeds  are  recorded,  in  the  county  or  corporation 
wherein  the  real  estate  or  any  part  thereof  is,  if  it  be  claimed 
in  real  estate,  or  wherein  he  resides,  if  it  be  claimed  in  personal 
property.  The  writing  is  to  describe  the  property  selected  with 
reasonable  certainty,  and  have  the  householder's  cash  valuation 
annexed  thereto.  If  the  claim  be  in  personal  property,  the  val- 
uation is  to  be  affixed  to  each  parcel  or  article.20  If  the  house- 
holder dies  without  having  set  apart  a  homestead,  his  widow  and 
minor  children,  or  such  of  them  as  there  may  be,  may  file  a  pe- 
tition in  the  Circuit  Court  of  the  county,  or  the  city  court  of  a 
city  wherein  his  real  estate  or  the  greater  part  thereof  is,  to 
have  commissioners  appointed  to  set  it  apart,  if  it  is  to  be  set 
apart  in  real  estate;  if  to  be  set  apart  in  personalty,  his  widow 
may  select  and  set  it  apart  by  such  writing  as  the  householder 
would  have  had  to  make  if  living;  but  if  she  die  or  marry,  the 
minor  children  by  their  guardian  or  next  friend  may  have  it 

26.  Code,  §§  3631,  3639.  The  Statute  does  not  prescribe  the  form 
of  the  writing,  but  it  is  believed  that  the  following  form  is  suffi- 
cient :  Know  all  men  by  these  presents  that  I  -  -  a  resident 
of  the  county  of  in  the  State  of  Virginia,  being  a  house- 
holder and  head  of  a  family,  do  hereby  declare  my  intention  to 
claim,  and  I  do  hereby  select  and  set  apart,  as  and  for  a  homestead, 
in  pursuance  of  the  Constitution  and  laws  of  the  State  of  Virginia, 
the  following  real  and  personal  property,  towit:  The  tract  of  land 

on  which  I  now  reside  in  the  said  county  of  containing  one 

hundred  acres,  bounded  and  described  as  follows  (here  insert  such 
description  of  the  land  as  would  be  sufficient  -in  a  deed  of  convey- 
ance) of  the  value  of:  $1000 

One  black  horse  of  the  value  of 150 

Two   milch   cows   of  the   value   of  $50    each 100 

One  piano  of  the  value  of 250 


$1500 

All  of  said  personal  property  being  located  on   the   tract   of  land 
above  mentioned. 

Given  under  my  hand  and  seal  this  the  day  of 1912. 

(Seal.) 
To  be  acknowledged  as  other  deeds. 


§  405      EFFECT  ON  DEBTS  OR  CLAIMS  OF  CREDITORS        795 

set  apart  by  such  a  writing.27  By  the  Code28  it  is  provided  that 
the  exemptions  may  be  set  apart  at  any  time  before  the  same  is 
subjected  by  sale,  or  otherwise,  under  judgment,  decree,  order, 
execution  or  other  legal  process.  It  cannot  be  asserted  as  a 
mere  claim,  however,  for  the  first  time  in  the  Court  of  Appeals 
after  abundant  opportunity  to  claim  it  has  been  given  while  the 
case  was  pending  in  the  trial  court.29 

§  405.    Effect  of  homestead  on  debts  or  claims  of  cred- 
itors. 

By  express  provision  of  the  constitution,  the  exemption  does 
not  extend  to  any  execution,  order  or  other  process  issued  on 
any  demand  in  the  following  cases: 

"First.  For  the  purchase  price  of  said  property,  or  any  part 
thereof.  If  the  property  purchased,  and  not  paid  for,  be  ex- 
changed for,  or  converted  into,  other  property  by  the  debtor, 
such  last  named  property  shall  not  be  exempted  from  the  pay- 
ment of  such  unpaid  purchase  money  under  the  provisions  of 
this  article; 

"Second.  For  services  rendered  by  a  laboring  person  or 
mechanic ; 

"Third.  For  liabilities  incurred  by  any  public  officer,  or  offi- 
cer of  a  court,  or  any  fiduciary,  or  any  attorney-at-law  for 
money  collected; 

"Fourth.  For  a  lawful  claim  for  any  taxes,  levies,  or  assess- 
ments, accruing  after  the  first  day  of  June,  eighteen  hundred  and 
sixty-six ; 

"Fifth.     For  rent; 

"Sixth.  For  the  legal  or  taxable  fees  of  any  public  officer  or 
officer  of  a  court."30 

Xor,  as  stated  above,  can  the  exemption  for  any  purpose  be 
claimed  in  a  shifting  stock  of  merchandise,  or  in  any  property 

27.  Code,   §§    3636,    3640. 

28.  Code,  §  3642. 

29.  Wray  v.   Davenport,  79  Va.   19,  25-6. 

30.  Va.  Constitution   (1902),  §  190. 


796  HOMESTEADS  AND  EXEMPTIONS  §    405 

the  conveyance  of  which  by  the  homestead  claimant  has  been  set 
aside  on  the  ground  of  fraud  or  want  of  consideration. 

The  provision  making  property  received  in  exchange  liable 
for  the  purchase  price  of  the  property  given  in  exchange  is  new. 
In  defining  the  words  "laboring  person"  contained  in  the  consti- 
tution of  1869,  the  Court  of  Appeals  said:  "We  think  it  safe 
to  say  that  the  word  'laborer/  when  used  in  its  ordinary  and 
usual  acceptation,  carries  with  it  the  idea  of  actual,  physical,  and 
manual  exertion  and  toil,  and  is  used  to  denote  that  class  of  per- 
sons who  literally  earn  their  bread  by  the  sweat  of  their  brows, 
and  who  perform  with  their  own  hands,  at  the  cost  of  consider- 
able labor,  the  contracts  made  with  their  employers 

The  framers  of  that  instrument  (the  constitution),  in  giving  to 
a  large  class  of  persons  a  homestead,  clearly  designed  that  it 
should  not  affect  that  class  of  persons  who  were  dependent  upon 
their  own  manual  labor  for  the  support  of  themselves  and  their 
families,  and  whose  necessity  for  the  prompt  and  certain  pay- 
ment of  their  wages  they  regarded  as  paramount  even  to  the 
claims  of  the  debtor  to  a  homestead."31  Applying  this  definition 
to  the  case  in  judgment,  the  court  held  that  a  mail  carrier  was 
a  "laboring  man"  within  the  meaning  of  the  constitution.  Since 
this  decision  the  Legislature  has  declared  that  the  term  "labor- 
ing man"  shall  include  all  householders  who  receive  wages  for 
their  services.32 

Owing  to  the  comma  contained  in  the  constitution  of  1869, 
immediately  after  the  words  "attorney  at  law"  in  the  third  ex- 
ception, some  doubt  was  cast  upon  the  proper  meaning  of  the 
exception.  Now,  however,  it  seems  fairly  plain  that  the  exemp- 
tion does  not  apply  to  any  liability  incurred  by  a  public  officer, 
officer  of  court,  or  any  fiduciary,  and  that  as  to  attorneys  at  law, 
as  such,  they  are  excluded  from  claiming  the  exemption  only 
for  "money  collected." 

The  constitution33  limits  the  right  of  the  householder  to  claim 
the  exemption  to  "any  execution,  order  or  other  process  issued 
on  any  demand  for  a  debt  hereafter  contracted."  Code,  §  3630, 

31.  Farinholt  v.  Luckhard,  90  Va.  936,  21  S.  E.  817. 

32.  Code,  §  3657. 

33.  Va.  Constitution  (1902),  §  190. 


§  405       EFFECT  ON  DEBTS  OR  CLAIMS  OF  CREDITORS         797 

says :  "On  any  demand  for  a  debt  or  liability  on  contract." 
Both  expressions  would  seem  to  deny  the  right  to  claim  the 
homestead  against  liabilities  for  torts,  and  such  was  the  con- 
struction given  to  the  constitution  of  1869,  and  the  act  passed 
in  pursuance  thereof.34  In  determining  whether  a  demand  is  for 
a  matter  of  contract  or  tort,  the  court  will  look  to  the  substance 
of  the  transaction  and  not  to  its  mere  form.  For  example,  a 
breach  of  promise  to  marry  is  enforced  in  a  contract  action,  and 
yet  the  substance  of  the  transaction  is  a  quasi-tort,  for  which 
there  is  no  measure  of  damages,  and  in  which  exemplary  dam- 
ages may  be  allowed.  On  the  other  hand,  where  the  right  of 
recovery  in  an  action  is  based  solely  upon  the  ground  that  the 
plaintiff  has  been  damaged  to  a  certain  amount  by  a  breach  of 
contract  on  the  part  of  the  defendant,  and  not  by  reason  of  a 
tort,  although  enforced  in  an  action  of  trespass  on  the  case,  it  is  a 
demand  founded  on  contract  against  which  the  homestead  may 
be  claimed.  The  mere  use  of  violent  language  in  characterizing 
the  alleged  fraud  in  the  procurement  of  the  contract  and  its 
breach,  will  not  suffice  to  convert  the  breach  of  the  contract  into 
a  tort,  and,  as  stated,  the  defendant  in  such  action  may  claim 
the  benefit  of  the  homestead  exemption  against  the  judgment 
rendered  therein.35  It  has  further  been  held  that  the  claim  to  a 
homestead  cannot  be  asserted  against  a  demand  for  taxes  due 
the  state,  though  the  claim  be  asserted  by  the  sureties  of  an  offi- 
cer.36 Until  recently  amended,  the  Code37  also  excepted  debts 
as  to  which  the  householder  had  waived  his  homestead  exemp- 
tion. Under  the  recent  amendment  of  this  section,  this  exemp- 
tion has  been  omitted.  It  seems  amply  provided  for  by  §  3647. 
The  homestead  exemption  is  an  exemption  against  liability 
for  debts,  and  if  the  householder  dies  leaving  a  widow  and  heirs 

34.  Whiteacre   v.    Rector,    29    Gratt.    714,   a   fine   due   the    common- 
wealth; Burton  v.  Mill,  78  Va.  468,  damages  for  breach  of  promise  to 
marry.      It    has    been    held,    however,    that    the  homestead   may  be 
claimed  against  a  fine  due  the  United  States.     This  was  based  on  the 
language  of  the  U.  S.  statutes.     Allen  v.  Clark  (C.  C.  A.),  9  Va.  L. 
Reg.  694. 

35.  Jewett  v.  Ware,  107  Va.  802,  60  S.  E.  131. 

36.  Com.  v.  Ford,  29   Gratt.  683. 

37.  Code,  §  3630. 


798  HOMESTEADS  AND  EXEMPTIONS  §    405 

but  no  debts,  the  exemption  cannot  be  claimed  by  the  widow 
against  the  heirs.38  In  the  case  just  cited,  there  was  a  widow 
and  no  children,  but  the  court  said  distinctly  that  if  there  are  no 
minor  children,,  she  cannot  hold  a  homestead  against  the  adult 
children.  In  2  Va.  Law  Reg.  172,  it  was  said  by  the  present 
writer:  "Nothing  is  said  about  the  case  where  the  householder 
leaves  a  widow  and  children,  some  of  whom  are  infants  and 
others  adults,  but  it  seems  to  us  that  the  plain  language,  both  of 
the  constitution  and  the  Act  of  Assembly,  gives  the  exemption 
only  against  creditors,  and  hence  that  the  exemption  cannot  be 
claimed  against  the  heirs  in  any  case,  if  there  are  no  creditors. 
While  this  seems  to  be  plain,  it  might  lead  to  an  anomalous  re- 
sult. If  a  householder  owning  $2,000  worth  of  property  dies 
leaving  a  widow  and  two  children,  one  an  infant  and  the  other 
adult,  and  $500  of  debts ;  as  against  the  creditors  the  widow  and 
infant  might  claim  the  whole  $2,000  as  exempt,  but  not  as  against 
the  adult  heir.  If  the  adult  heir  chooses  to  pay  off  the  debts,  and 
does  so,  as  he  has  the  right  to  do — being  one  of  the  heirs — we 
presume  the  right  to  claim  the  homestead  by  the  widow  and  in- 
fant is  destroyed,  and  the  estate  would  then  be  divided  as  if  there 
were  no  debts."  Since  this  was  written,  the  Court  of  Appeals 
has  held  that,  where  a  husband  has  set  apart  a  homestead  in  his 
lifetime  and  then  died,  owing  debts,  and  leaving  a  widow  but  no 
infant  children  surviving  him,  the  widow  is  entitled  to  continue 
to  hold  the  homestead  during  her  life  or  widowhood,  and  cannot 
be  deprived  thereof  by  the  payment  of  the  husband's  debts  by  his 
adult  heirs.  The  homestead  having  been  claimed  by  the  husband 
in  his  lifetime,  it  is  said  that  her  status  is  fixed  by  the  death  of 
her  husband  owing  debts  and  a  homestead  claimed  in  his  life- 
time.39 This  is  not  the  exact  case  discussed  above,  and  it  may 
be  that  a  different  result  would  follow  if  the  debts  were  paid  be- 
fore the  homestead  was  claimed,  but  the  reasoning  of  the  court 
would  probably  lead  to  a  like  result  as  in  the  case  cited  in  the 
margin,  whether  the  homestead  were  claimed  by  the  husband  in 
his  lifetime,  or  by  the  widow  after  his  debts  were  paid  by  the 
heir.  If  so,  the  question  above  raised  is  settled  in  Virginia. 

38.  Helm  v.  Helm,  30  Gratt.  404. 

39.  Davis  v.  Davis,  101  Va.  230,  43  S.  E.  358. 


§    406  WAIVER  OF  THE  HOMESTEAD  799 

§  406.    Waiver  of  the  homestead. 

It  is  provided  by  §  3647  of  the  Code  that  the  householder  may, 
in  any  bond,  bill,  note,  or  other  instrument  for  the  payment  of 
money,  or  by  writing  thereon  or  annexed  thereto,  waive  the  ben- 
efit of  his  exemption  either  before  or  after  it  has  been  set  apart, 
and  that,  if  he  does  so,  the  property  which  would  otherwise  be 
exempt,  may  be  subjected  in  like  manner  and  to  the  same  extent 
as  other  property  or  estate  of  such  person,  except  that  the  waiver 
shall  not  extend  to  property  excepted  under  Code,  §§  3650,  3651, 
and  3652.  Both  the  constitution  of  1869  and  that  of  1902  are 
silent  on  the  subject  of  waiver.  A  waiver  clause  was  inserted  in 
the  Act  putting  into  effect  the  constitution  of  1869,  and  is  re- 
tained in  the  present  Code  by  §  3647,  which  has  not  been  amended 
or  altered  since  the  present  Constitution  went  into  effect.  The 
waiver  clause  in  the  former  Act  of  Assembly  was  sustained  as 
valid,  and  it  was  deemed  immaterial  whether  the  waiver  was 
made  before  or  after  the  homestead  had  been  set  apart.40 

"Whether  a  homestead  under  the  new  constitution  can  be 
waived  by  the  householder  has  recently  been  the  subject  of  dis- 
cussion pro  and  con  in  the  Virginia  Law  Register.41  This  doubt 
is  based  chiefly  upon  the  supposed  repeal,  by  implication,  of 
§  3647  of  the  Code.  It  is  not  within  the  purview  of  this  chapter 
to  settle  or  even  to  discuss  the  subject  of  controversy.  Repeals 
by  implication  are  not  favored,  and  it  is  not  believed  that  the  sec- 
tion mentioned  has  been  so  repealed.  The  waiver,  to  be  effectual, 
must  be  made  in  the  bond,  bill,  note  or  other  instrument,  by 
which  the  householder  is  or  may  become  liable  for  the  pay- 
ment of  money,  or  by  a  writing  thereon  or  attached  thereto. 
The  form  of  the  waiver  is;  "I  (or  we)  waive  the  benefit 
of  my  (or  our)  exemption  as  to  this  obligation."  If  non- 
negotiable  paper  containing  on  the  face  of  it  a  waiver 
of  the  homestead  by  the  maker  and  endorsers  is  assigned 
by  the  payee  thereof,  the  homestead  is  not  thereby  waived  as  to 
the  liability  of  the  assignor  by  virtue  of  his  assignment.  The 
waiver  on  the  face  of  the  paper  is  applicable  only  to  the  partic- 

40.  Reed  v.  Union  Bank,  29  Gratt.  719;  Linkenhoker  v.  Detrick,  81 
Va.  44. 

41.  10  Va.  Law  Reg.  363.  469,  563. 


800  HOMESTEADS  AND  EXEMPTIONS  §    406 

ular  obligation  expressed  in  the  body  of  the  paper,  and  not  to 
the  implied  obligation  growing  out  of  the  assignment.42  If  two 
or  more  persons  are  engaged,  as  partners,  in  commercial  pur- 
suits, in  which  it  is  necessary  or  customary  to  execute  negotiable 
paper  containing  a  waiver  of  the  homestead,  it  is  believed  that 
the  signature  of  the  firm  name  in  the  usual  course  of  business,  by 
any  member  of  the  firm,  to  such  note,  will  be  sufficient  to  waive 
the  exemption  of  each  and  every  member  of  the  firm.  This  would 
seem  to  result  from  the  nature  of  the  transaction  and  the  rights 
of  the  partners  among  themselves.  But  it  seems  to  have  been 
held  otherwise  in  Alabama.43 

If  the  surety  in  a  bond  containing  a  waiver  of  the  exemption, 
pays  the  bond,  the  question  will  arise  at  once,  can  the  principal 
claim  the  homestead  against  the  surety  when  called  on  to  pay  the 
debt?  By  analogy  to  the  construction  placed  on  the  Bankrupt 
Act,  it  would  seem  that  he  may.  The  action  is  no  longer  on  the 
bond,  but  on  an  implied  contract  which  grows  out  of  the  relation 
of  the  parties.  The  bond  has  been  paid,  and  a  "bond  on  which 
principal  and  surety  are  both  bound,  once  paid  by  the  surety  in 
the  lifetime  of  the  principal,  without  assignment  by  the  creditor 
or  agreement  to  assign,  is  forever  dead  as  a  security  as  well  in 
equity  as  in  law.  There  can  be  no  subrogation  in  such  a  case."44 

It  is  somewhat  singular  that  a  married  man  is  permitted  to  de- 
feat the  homestead  absolutely  by  a  waiver  of  this  kind,  which  is 
his  sole  act,  but  cannot  by  his  sole  act  alien  or  encumber  the 
property.  And  yet,  it  is  manifest  that  the  legislature  intended  to 
make  such  a  distinction.45  He  is  thus  allowed  to  do  indirectly 
what  he  cannot  do  directly. 

It  is  provided  by  the  Code,46  that,  where  judgment  is  rendered 
on  an  instrument  waiving  the  homestead,  or  upon  a  demand  su- 
perior to  the  homestead,  the  judgment  and  the  execution  which 
issues  thereon  shall  state  the  fact,  but  that  the  silence  of  such  a 

42.  Long  v.  Pence,  93  Va.  584,  25  S.   E.   593,  2  Va.   Law  Reg.  607, 
and  Note  by  Judge  Burks. 

43.  Vincent  v.  Hurst,  76  Ala.  588,  as  cited  in  9  Am.  &  Eng.   Encl. 
Law  (1st  Ed.)  488. 

44.  Cromer  v.  Cromer,  29  Gratt.  280. 

45.  Va.  &  Tenn.  Coal  Co.  v.  McClelland,  98  Va.  424,  36  S.   E.  479. 

46.  Code,  §  3649a. 


§§   407-408  EFFECT  OF  WILL  OF  HOUSEHOLDER  801 

judgment  or  execution  upon  that  subject  shall  not  raise  a  pre- 
sumption of  non-waiver.  A  judgment  otherwise  valid,  however, 
is  not  invalidated  by  the  fact  that  it  erroneously  states  that  it 
was  rendered  on  an  instrument  waiving  the  homestead.47 

§  407.    Prior  liens. 

It  has  been  held  in  Iowa  and  Texas  that  where  property  ac- 
quired the  homestead  character  subsequent  to  the  creation  of  liens 
or  incumbrances  thereon,  the  latter  are  not  affected  thereby.48 
The  constitution  of  1869,  Art.  XI,  §  3,  declared,  "That  nothing 
contained  in  this  article  shall  be  construed  to  interfere  with  the 
sale  of  the  property  aforesaid  or  any  part  thereof  by  virtue  of 
any  mortgage,  deed  of  trust,  pledge  or  other  security  thereon." 
No  such  provision  is  contained  in  the  present  constitution.  In 
construing  the  words  "other  security"  in  the  constitution  of  1869, 
the  court  held  that  "other  security"  meant  security  of  a  like  char- 
acter, that  is,  such  as  was  created  by  the  party's  own  act,  -and 
consequently  that  a  judgment  against  the  householder  before  he 
became  such  was  not  superior  to  the  homestead,  and  that  the 
homestead  might  be  claimed  against  it.49  Afterwards  it  was  held 
that  such  a  judgment  was  a  security  within  the  meaning  of  the 
constitution,  thereby  in  effect  overruling  White  v.  Owen,  cited 
in  the  margin,  though  no  mention  was  made  of  the  case.30  In  a 
still  later  case,  however,  the  doctrine  of  White  v.  Owen  was  re- 
affirmed, and  the  case  of  Kennerly  v.  Swartz,  cited  in  the  margin, 
was  overruled,  so  that  the  present  holding  is  that  the  home- 
stead may  be  claimed  by  a  householder  against  a  judgment  ob- 
tained against  him  before  he  became  a  householder.51 

§  408.    Effect  of  will  of  householder. 

It  would  seem  from  the  provisions  of  the  Code,52  permitting 
the  widow  and  minor  children  of  a  householder  to  set  apart  a 

47.  Long  v.   Pence,  93  Va.  584,  25   S.   E.  593. 

48.  95  Am.   St.  Rep.  931-2,  and  cases  cited. 

49.  White  v.   Owen,  30   Gratt.   43. 

50.  Kennerly  v.   Swartz,  83  Va.   704,  3   S.   E.  348. 

51.  Oppenheim  v.  Myers,  99  Va.  582,  39  S.  E.  218. 

52.  Code,  §§  3636,  3640. 

—51 


802  HOMESTEADS  AND  EXEMPTIONS  §    408 

homestead  in  Ifis  property,  that  he  cannot,  if  indebted,  make  a 
will  by  which  he  can  deprive  them  of  this  privilege.  It  is  ex- 
pressly provided,53  however,  that  if  the  widow  receives  either 
dower  or  jointure,  she  cannot  claim  the  benefit  of  the  homestead 
in  the  householder's  real  estate;  but  the  rights  of  minor  children 
in  that  event  are  not  affected.  What  this  language  would  seem 
to  indicate  is  that  the  application  must  be  joint,  yet  the  language 
of  §  3637  is  quite  explicit  and  evidently  contemplates  a  separate 
interest  for  the  children  in  the  event  that  the  widow  receives 
either  dower  or  jointure.  It  would  seem,  therefore,  that  if  she 
receives  neither,  that  the  application  should  be  by  the  widow  and 
infant  children,  but  that  if  she  has  received  either,  the  applica- 
tion for  the  homestead  should  be  by  the  children  only.  In  this 
event,  the  estate  of  the  householder  would  be  burdened  both  by 
the  dower  or  jointure  of  the  wife  and  the  homestead  in  the  in- 
fant children.  While  the  widow  who  has  received  either  dower 
or  jointure  cannot  claim  the  homestead  in  her  husband's  real  es- 
tate, the  right  to  claim  a  homestead  in  the  personalty  is  left  un- 
affected.54 There  can  be  but  one  homestead,  however,  carved  out 
of  the  householder's  estate.  Where  the  widow  has  received 
dower  or  jointure  it  would  seem  that  she  cannot  claim  a  home- 
stead in  his  personal  estate,  if  a  homestead  has  been  claimed  by 
the  minor  children  in  the  real  property. 

If  a  householder  who  is  indebted  has  set  apart  a  homestead  in 
his  lifetime,  he  cannot  by  will  deprive  his  widow  and  minor  chil- 
dren of  the  benefit  of  the  exemption,  for  it  is  expressly  provided 
that,  after  his  death,  it  shall  be  held  by  his  widow  and  minor  chil- 
dren, or  such  of  them  as  there  may  be,  exempt  as  before,  and  also 
from  the  debts  and  obligations  of  such  widow  and  children,  or 
any  of  them.55  Inasmuch  as  the  homestead  set  apart  by  the  hus- 
band in  his  lifetime  is  exempt  not  only  from  his  debts,  but  also 
from  the  debts  of  the  widow  and  her  minor  children  as  well,  it  is 
doubtful  whether  she  can  claim  a  homestead  in  her  property  while 
enjoying  one  set  apart  in  her  husband's  property.  It  would  seem 
to  be  against  public  policy  and  the  spirit  of  the  act.  It  is  not  per- 

53.  Code,  §  3637. 

54.  Code,  §  3640. 

55.  Code,  §  3635. 


§§    409-411      INCOME,    INCREASE   AND   BETTERMENTS  803 

mitted  in  South  Carolina.56  It  must  be  borne  in  mind  that  the 
homestead  can  only  be  claimed  as  against  a  debt  or  liability  on 
contract,  and  if  there  are  no  such  debts  or  liabilities,  the  widow 
and  minor  children  cannot  claim  the  homestead  against  the  adult 
children,  or  other  heirs.57 

§  409.   Deed  of  trust  or  mortgage. 

It  is  provided  by  the  Code,58  that  the  real  estate  set  apart  by  a 
householder  shall  not  be  mortgaged,  encumbered  or  aliened  by 
the  householder,  if  a  married  man,  except  by  the  joint  deed  of 
himself  and  his  wife  admitted  to  record,  except  for  the  purchase 
price  thereof,  or  for  the  erection  or  repair  of  buildings  thereon. 
The  statute  is  silent  as  to  a  homestead  claimed  in  personal  prop- 
erty. It  is  probable  that  this  may  be  aliened  or  encumbered  by 
the  sole  act  of  the  householder.  In  Virginia  it  has  been  held  that 
the  sole  deed  of  a  husband  conveying  a  homestead  in  real  estate 
which  has  been  set  apart  by  him  is  void,  and  such  seems  to  be  the 
weight  of  authority.59 

§  410.    Power  over  homestead. 

The  householder  has  the  unrestrained  power  of  alienation  and 
encumbrance  over  the  homestead  except  as  hereinbefore  stated, 
and  a  court  of  equity  will  not  require  security  to  be  given  for  the 
forthcoming  of  the  articles  exempted,  or  their  value,  at  the  ex- 
piration of  the  homestead  period,  either  of  a  householder,  or  a 
widow  and  children  after  his  death,  although  a  limit  is  fixed  to 
the  duration  of  the  homestead.  During  the  homestead  period,  no 
lien  in  invitum  attaches  thereto.60 

§  411.    Income,  increase  and  betterments. 
It  is  expressly  provided  by  the  Code,61  that  if,  at  the  time  the 

56.  Lanham  v.  Glover,  46  S.  C.  65,  24  S.   E.  49. 

57.  Helm  v.   Helm,  30  Gratt.  404. 

58.  Code,  §  3634. 

59.  Va.-Tenn.,    etc.,   Co.   v.   McClelland,   98   Va.   424,   36   S.    E.   479; 
Note,  95  Am.   St.   Rep.   911,  914. 

60.  Williams   v.    Watkins,    92    Va.    680,   24    S.    E.    223;    Mahoney   v. 
James,  94  Va.  176,  26  S.   E.  384. 

61.  Code,  §  3643. 


804  HOMESTEADS  AND  EXEMPTIONS  §    413 

homestead  is  set  apart,  it  does  not  exceed  $2,000  in  value,  the 
exemption  thereof  shall  not  be  affected  by  any  increase  in  its  value 
afterwards,  unless  such  increase  is  caused  by  permanent  improve- 
ment upon  the  real  estate  set  apart.  This  provision  is  taken 
from  the  West  Virginia  law.62  Under  the  West  Virginia  Code, 
the  homestead  could  only  be  claimed  in  real  estate,  and  hence 
many  of  the  difficulties  which  arise  under  the  so-called  home- 
stead law  of  Virginia  do  not  and  cannot  arise  under  the  West 
Virginia  law.  No  matter  how  valuable  the  real  estate  thereafter 
may  become,  unless  it  be  by  permanent  improvements  placed 
thereon,  it  is  exempt.  If,  for  instance,  the  building  of  a  railroad 
or  other  improvements  in  proximity  to  it,  should  greatly  enhance 
its  value,  it  would  still  be  exempt.  If  in  all  respects  fair  in  the 
first  instance,  it  is  probable  that  the  discovery  of  valuable  min- 
erals thereon  afterwards  would  not  affect  the  exemption.  If, 
however,  the  property  is  enhanced  in  value  by  permanent  im- 
provements, a  creditor  can  subject  the  excess.  Crops  raised  in 
the  ordinary  course  of  husbandry  upon  land  previously  set  apart 
as  a  homestead,  while  they  remain  such,  are  exempt  from  levy  to 
the  same  extent  as  the  land  itself.63  But  how  about  the  increase 
of  personal  property?  This,  when  well  managed,  generally  in- 
creases more  rapidly  than  real  estate,  and,  if  a  liberal  construc- 
tion is  put  upon  this  statute,  all  increase  of  personal  estate  is 
exempt.  It  is  difficult  to  say  what  is  the  proper  construction  of 
this  section.64 

§  412.    Excessive  homestead. 

It  is  provided  by  the  Code,65  that  where  the  homestead  is  ex- 
cessive, in  the  first  instance,  or  has  been  made  excessive  by  im- 
provements upon  real  estate,  any  creditor  against  whom  the 
exemption  is  claimed,  m-ay  file  a  bill  in  equity  for  the  purpose  of 
subjecting  such  excess. 

§  413.    How  claims  superior  to  homestead  enforced. 

If  a  householder  die  leaving  debts,  on  some  of  which  the  home- 

62.  Burks'   Address,   page   31,   2    Bar.    L.    Pr.    1401. 

63.  Neblett  v.   Shackleton,  111  Va.   707,  69   S.   E.   946. 

64.  15  Am.  &  Eng.  Encl.  Law  (2nd  Ed.)  592,  et  seq. 

65.  Code,  §  3644. 


§    414  CESSATION  OF   HOMESTEAD  805 

stead  has  been  waived,  and  others  not,  and  the  claim  of  exemp- 
tion is  asserted  by  his  widow  and  infant  children,  that  portion 
of  his  property  not  embraced  in  his  homestead  should  be  first  ap- 
plied ratably  to  all  of  his  debts,  and,  if  not  sufficient  to  pay  them, 
then  those  creditors  holding  a  waiver  of  the  homestead  exemp- 
tion may  resort  to  the  homestead  for  the  payment  of  the  balance 
of  their  debts ;  and  even  if  the  householder  be  alive,  a  creditor 
holding  a  debt  paramount  to  the  homestead  is  required  to  exhaust 
the  non-exempt  property  in  the  county  or  corporation  wherein  the 
proceeding  is  before  resorting  to  that  which  is  exempt.  If,  how- 
ever, the  claim  is  secured  by  mortgage,  deed  of  trust,  or  other 
specific  lien  on  the  real  estate  set  apart,  such  security  may  be 
enforced  in  the  first  instance  before  resorting  to  the  other  estate 
of  the  debtor.66  "But  a  judgment  creditor  who  has  the  first  lien 
on  the  real  estate  of  his  debtor,  worth  nearly  $30,000,  has  the 
right  to  subject  the  same  to  the  payment  of  his  judgment,  though 
his  debt  contains  no  waiver  of  the  exemption,  and  the  subsequent 
liens  which  are  paramount  to  the  homestead  are  in  excess  of  the 
whole  value  of  the  land.  If  the  judgment  debtor  claims  the  home- 
stead, it  may  be  set  apart  to  him,  and  the  judgment  be  paid  out 
of  the  residue,  but  if  necessary  to  pay  subsequent  liens  which  are 
paramount  to  the  homestead,  the  land  so  set  apart  should  be  sub- 
jected."67 • 

§  414.    Cessation  of  homestead. 

It  is  provided  by  the  Code,68  that  when  any  person  entitled  as 
a  householder  to  the  exemption  provided  for  him  in  §  3630  ceases 
to  be  a  householder,  or  when  any  person  removes  from  this  state, 
his  right  to  claim  or  hold  any  real  estate  as  exempt  under  the 
Chapter  on  Homesteads,  shall  cease ;  and  upon  the  death  of  a 
householder  leaving  neither  wife  nor  minor  children  surviving 
him,  or,  if  there  be  a  wife  or  minor  children,  then  upon  her  death 
or  marriage,  and  if  there  be  minor  children,  as  soon  as  the  young- 
est of  them  who  attain  the  age  of  twenty-one  years  attains  that 

66.  Code,  §  3648;   Strange  v.   Strange,   76  Va.  240;   Scott  v.   Cheat- 
ham,  78   Va.   82. 

67.  Strayer  v.  Long,  93  Va.  695,  26  S.   E.  409. 

68.  Code,   §   3649. 


806  HOMESTEADS  AND  EXEMPTIONS  §    414 

age,  or  all  marry,  if  they  marry  before  attaining  that  age,  the  ex- 
emption shall  cease,  and  the  property  pass  as  other  real  and  per- 
sonal estate,  according  to  the  law  of  descents  and  distribution, 
or  as  the  same  may  be  devised  or  bequeathed  by  said  householder, 
subject  to  his  debts;  but  that  the  lien  of  a  judgment  or  decree  for 
money  upon  a  demand  not  paramount  to  the  homestead  shall  at- 
tach to  such  only  of  his  real  estate  as  he  may  be  possessed  of  or 
entitled  to  at  the  time  the  exemption  ceases.  It  is  said  by  Judge 
Burks,  in  his  address,  that  "The  main  object  in  declaring  when 
the  exemption  shall  cease  is  to  fix  a  time  when  a  judgment  lien 
shall  attach  to  the  exempted  real  estate,  and  it  is  declared  that  it 
shall  not  attach  except  to  such  real  estate  as  the  householder 
shall  have  at  the  time  the  exemption  shall  cease,  and  that  it  shall 
attach  then.  This  leaves  the  householder  at  liberty  while  the  ex- 
emption continues  to  alien  the  exempted  real  estate  free  from 
any  encumbrance  by  the  lien  of  a  judgment  (in  the  absence  of 
waiver)  recovered  during  the  time  the  right  of  exemption  ex- 
ists, and  thus  enables  him  to  make  a  good  title  to  the  purchaser, 
at  least  so  far  as  such  judgment  is  concerned." 

Under  the  language  of  this  section,  it  would  seem,  if  there  had 
once  been  a  family  which  had  ceased  to  exist,  the  homestead 
would  likewise  cease  to  exist.69  It  has  been  hereinbefore  ob- 
served, however,  that  the  right  to  the  homestead  is  conferred  by 
the  constitution,  and  that  the  legislature  is  simply  directed  to 
enact  the  necessary  legislation  to  carry  out  the  provisions  of  the 
constitution,  and  it  has  been  strongly  argued  that,  as  the  legisla- 
ture was  directed  to  prescribe  the  manner  in  which  the  house- 
holder or  head  of  a  family  should  set  apart  and  hold  for  himself 
and  family  the  homestead  provided  by  the  constitution,  the  leg- 
islature had  no  power  to  deprive  the  householder  of  his  home- 
stead set  apart  when  there  was  a  family,  simply  on  account  of 
the  fact  that  the  family  had  ceased  to  exist  as  such ;  and  such  is 
the  holding  of  the  court.70 

The  prohibition  upon  the  enforcement  of  a  judgment  against 
property  set  apart  as  a  homestead,  during  the  homestead  period 
was  not  intended  to  suspend  the  running  of  the  act  of  limitations 

69.  Calhoun  v.  Williams,  32  Gratt.  18. 

70.  Wilkinson  v.   Merrill,   87   Va.   513,   12   S.   E.   1015. 


§  415  POOR  DEBTORS'  EXEMPTION  807 

during  the  homestead  period  as  to  judgments  against  the  house- 
holder, nor  to  extend  the  life  of  the  judgment.  Hence,  where  a 
judgment  rendered  against  the  householder  has  become  barred  by 
the  act  of  limitations,  before  the  exemption  period  ceased,  a  suit 
to  enforce  the  lien  after  the  householder's  death,  leaving  neither 
widow  nor  minor  children,  cannot  be  maintained,  as  the  judg- 
ment is  barred  by  the  act  of  limitations  applicable  to  judgments, 
and  there  is  no  deduction  of  any  time  on  account  of  the  existence 
of  the  homestead  period.  The  statute  fixing  the  limitation  on  the 
life  of  judgments  contains  no  such  exception.71 

§  415.    Poor  debtors'  exemption. 

Section  190  of  the  constitution,  in  providing  for  the  homestead, 
and  also  the  Act  of  Assembly  putting  it  into  operation,  each  ex- 
pressly states  that  it  is  "in  addition"  to  the  articles  now  exempted 
from  levy  or  distress  for  rent.  These  latter  exemptions  are 
usually  spoken  of  as  the  "poor  debtors'  law."  The  exemption 
embraces  the  wearing  apparel  of  the  debtor  and  his  family,  nec- 
essary beds  and  bedding,  and  numerous  articles  of  household 
and  kitchen  furniture,  and  a  small  amount  of  supplies.  If  the 
householder  is  at  the  time  actually  engaged  in  agricultural  pur- 
suits, he  is  allowed  an  additional  exemption  in  the  way  of  work 
animals,  necessary  gearing,  and  certain  enumerated  farming 
utensils.72  If  the  householder  be  a  laboring  man,  his  wages  are 
exempt  to  an  amount  not  exceeding  $50.00  per  month.73  By  the 
Code,74  it  is  provided  that  "householder"  as  used  in  the  chapter 
on  exemptions,  shall  be  equivalent  to  the  expression  "house- 
holder or  head  of  a  family;"  and  the  term  "laboring  man"  shall 
be  construed  to  include  all  householders  who  receive  wages  for 
their  services. 

It  is  not  necessary  to  "set  apart"  the  articles  constituting  this 
exemption  by  any  writing.  They  are  selected  by  the  householder, 
or  his  agent,  and  are  then  simply  held.  But  there  must  be  a 
householder,  and  he  must  reside  in  this  state.  If  the  house- 

71.  Ackiss  v.  Satchell,  104  Va.  700,  52  S.  E.  378. 

72.  Code,  §§  3650,  3651. 

73.  Code,   §   3652. 

74.  Code,  §  3657. 


808  HOMESTEADS  AND  EXEMPTIONS  §415 

holder  has  not  all  the  articles  enumerated  in  §§  3650  and  3651,  he 
cannot  substitute  other  articles  in  lieu  of  them.  The  enumerated 
articles  are  exempt,  or  "so  much  or  so  many  thereof  as  he  may 
have."  The  right  to  the  exemption,  however,  is  never  dimin- 
ished by  death  of  exempted  stock,  consumption,  or  otherwise. 
The  householder  may  at  all  times  select  so  many  of  the  articles 
exempt  as  he  may  then  have.  Upon  the  death  of  the  householder 
leaving  a  widow  and  minor  children  or  daughters  who  have  never 
married,  there  shall  be  vested  in  them,  or  such  of  them  as  there 
may  be,  absolutely,  what  would  have  been  exempt  to  the  house- 
holder if  alive,  under  §  3650,  but  not  the  exemption  provided  by 
§  3651.75 

The  exemption,  when  allowed,  is  absolute,  and  the  property  is 
not  liable  for  the  debts  of  the  decedent,  charges  of  administra- 
tion, or  funeral  expenses.76  If  there  be  no  minor  children  or 
daughters  who  have  never  married,  the  widow  is  entitled  to  the 
exemption,  whether  the  estate  of  her  husband  is  solvent  or  not, 
and  if  his  administrator  has  sold  them,  she  is  entitled  to  their 
value.77  There  is  likewise  exempt  for  the  use  of  the  family  the 
dead  victuals  (or  so  much  thereof  as  may  be  necessary)  laid  in 
by  the  householder  for  the  consumption  of  his  family ;  and  any 
live  stock  necessary  for  the  use  of  the  family  may  be  killed  for 
that  use  before  sale  or  distribution,  without  any  account  thereof 
being  taken  by  the  executor  or  administrator.78 

The  former  act  used  the  words  "unmarried  daughters,"  which 
was  broad  enough  to  cover  widows,  but  §  3653  says,  "daughters 
who  have  never  married."  If  there  are  daughters  who  have 
never  married,  but  who  do  not  constitute  members  of  the  house- 
hold at  the  death  of  the  householder,  it  is  not  clear  what  estate,  if 
any,  they  take  in  the  property  exempted  by  the  Code.79  The  lan- 
guage of  the  section  is  broad  enough  to  give  them  a  joint  interest 
or  estate  with  members  of  the  household  who  answer  the  descrip- 
tion of  beneficiaries  under  the  section,  but  the  spirit  of  the  law 

75.  Code,  §  3653. 

76.  Code,   §   3653. 

77.  Riggan  v.  Riggan,  93  Va.  78,  24  S.   E.  920. 

78.  Code,    §   2649. 

79.  Code,   §   3653. 


§  415  POOR  DEBTORS'  EXEMPTION  809 

seems  to  be  to  provide  for  the  "family" — to  furnish  them  the 
necessities  of  life  in  their  hour  of  greatest  need.  It  is  hardly  to 
be  supposed  that  the  legislature  intended  to  make  this  provision 
for  those  who  have  broken  their  connection  with  the  household, 
and  yet  the  subject  is  not  free  from  doubt. 

By  recent  amendment  of  the  Code,80  there  is  added  to  the  list 
of  exempted  articles  "twenty  bushels  of  potatoes"  and  "fowls, 
not  exceeding  in  value  $10.00."  It  is  also  provided  that  the  live 
stock  exempt  under  this  section  shall  not  be  exempt  from  levy 
or  distress  made  under  the  provisions  of  Chapter  93  of  the  Code, 
which  relates  to  trespasses  by  cattle.  Nor  does  the  poor  debtor's 
exemption  apply  to  taxes  or  the  purchase  price  of  the  article  set 
apart.81 

Payments  made  in  weekly  or  monthly  installments  to  the  holder 
of  any  policy  of  insurance  in  any  accident  company,  sick  benefit 
company,  or  any  company  of  like  kind,  are  exempt  from  attach- 
ment, garnishment,  levy  or  distress  in  any  manner  for  any  debt 
due  by  the  holder  of  such  policy.82  It  will  be  observed  that  the 
holder  is  not  required  to  be  a  householder  or  head  of  a  family, 
and  this  is  the  only  case  where  he  need  not  be  such  in  order  to 
claim  the  statutory  exemption. 

The  wages  of  a  minor  are  not  liable  to  garnishment  nor  other- 
wise liable  to  the  payment  of  debts  of  his  parents.83 

The  wages  of  laboring  men  are  also  protected  against  garnish- 
ment outside  of  the  state  by  penalty  imposed  upon  the  garnish- 
ing creditor.84 

The  householder  during  his  lifetime  has  the  -absolute  power  of 
disposition  of  articles  exempted  under  Code,  §§  3650  and  3651, 
but  he  cannot  encumber  the  articles  exempt  under  §  3650.  It  is 
expressly  provided  that  any  deed  of  trust,  mortgage  or  other  writ- 
ing or  pledge  made  by  a  householder  to  give  a  Hen  thereon  shall 
be  void  as  to  such  property.  It  will  be  observed  that  this  restric- 
tion applies  only  to  articles  exempt  under  §  3650. 85 

80.  Code,  §  3650. 

81.  Code,  §   3654. 

82.  Code,  §  3652b. 

83.  Code,  §    3652c. 

84.  Code,  §  3652a. 

85.  Code,  §   3655. 


810  HOMESTEADS  AND  EXEMPTIONS  §    415 

The  language  of  the  Code86  seems  to  be  broad  enough  to  justify 
the  conclusion  that  the  householder  cannot  waive  the  benefit  of 
the  exemptions  provided  by  §§  3650,  3651,  3652.  But  if  a  house- 
holder refuses  to  accept  the  benefit  of  these  provisions  and  per- 
mits his  property  to  be  sold  under  a  fi.  fa.,  it  is  presumed  that 
neither  he  nor  his  privies  can  thereafter  assert  a  claim  to  the 
property  as  against  a  bona  fide  purchaser.  If,  however,  the  sale 
be  under  a  deed  of  trust,  he  could  probably  reclaim  the  property, 
as  the  statute  expressly  declares  such  deed  to  be  void. 

An  injunction  may  be  awarded  to  enjoin  the  sale  of  any  prop- 
erty exempted  under  the  provisions  of  the  preceding  sections,  and 
to  prevent  wages,  exempt  by  §  3652,  from  being  garnished,  or 
otherwise  collected  by  an  execution  creditor.87 

86.  Code,  §  3647. 

87.  Code,  §  3656. 


CHAPTER  XLVII. 
MECHANICS'  LIENS. 

§  416.  Origin   and   development  of  the  lien. 

§  417.  Who  may  take  out  the  lien. 

§  418.  Rights   of  Assignee. 

§  419.  On  what  the  lien  may  be  taken  out. 

§  420.  How  lien   of  general   contractor   is  perfected. 

The   account. 

Description   of   the   property. 

When  claim  of  lien  to  be  filed. 
§  421.  Remedies    of   sub-contractor. 

Independent  lien. 

Personal  liability  of  the  owner. 

Benefit  of  general  contractor's  lien. 

§  422.  Protection    of    sub-contractor    against    Assignments    and    Gar- 
nishments. 

§  423.  Mechanics'   lien    record. 
§  424.  Conflicting  liens. 
§  425.  Enforcement    of   lien. 
§  426.  How  lien  may  be  waived  or  lost. 

§  416.    Origin  and  development  of  the  lien. 

The  mechanics'  lien  is  purely  a  creation  of  statute.  It  had  "no 
existence  at  common  law,  and,  independently  of  statute,  is  un- 
known in  equity.  Common  law  liens  were  inseparably  con- 
nected with  the  possession  of  the  subject  of  the  lien,  and  were 
lost  when  the  possession  of  the  specific  article  on  which  the  lien 
was  claimed  passed  from  the  lien  creditor.  The  common  law 
recognized  the  right  of  the  creditor  to  retain  the  possession  of 
the  article,  created  or  enhanced  in  value  by  his  labor,  till  the 
compensation  due  for  his  labor  thereon  was  paid.  As  his  labor, 
under  contract  with  the  owner  of  the  chattel,  had  gone  into  the 
.chattel,  and  of  course  could  not  be  separated  therefrom,  the 
workman  was  permitted  to  retain  possession  of  the  finished  ar- 
ticle till  he  was  paid  for  the  labor  that  had  become  inseparably 
a  part  of  it. 

A  development  of  this  common  law  lien,  by  which  the  work- 
man was  permitted  to  retain  possession  of  the  chattel,  which 


812  MECHANICS'  LIENS  §  416 

had  been  increased  in  value  by  his  labor  and  material,  has  pro- 
duced statutes  providing  for  mechanics'  liens  in  every  state  of 
the  Union,  in  the  provinces  of  Canada,  and  in  the  District  of 
Columbia.  If  the  workman  was  permitted  to  follow  his  labor 
and  material  into  the  chattel  that  he  had  created,  or  had  given 
value  to,  why  should  not  the  workman  and  the  materialman  be 
permitted  to  follow  his  labor  and  supplies  into  the  build- 
ings and  structures,  which  owed  their  value  to  the  industry  and 
the  material  that  had  created  the  buildings  and  structures?  If 
the  workman  might  retain  possession  of  the  chattel,  and  so  give 
notice  to  the  world  of  his  claim,  preventing  frauds  and  decep- 
tions on  purchasers  and  creditors,  could  not  the  resources  of  the 
law  devise  some  method  as  to  a  subject  matter  not  admitting 
of  possession,  by  which  notice  of  the  lien  might  be  given  to  the 
world,  and  thus  prevent  frauds  on  purchasers  and  creditors? 

If  the  increased  value  of  the  chattel  by  reason  of  the  labor  be- 
stowed upon  it,  the  fact  that  the  loss  of  his  earnings  would  be  a 
greater  hardship  on  the  workman  than  a  similar  loss  to  other 
members  of  the  community,  together  with  the  benefit  conferred 
by  his  labor  in  increasing  the  resources  of  the  country,  entitled 
the  men  doing  labor  on,  or  furnishing  materials  for  chattels,  to 
a  peculiar  security  not  given  other  classes  of  citizens,  why 
shpuld  not  the  same  considerations  provide  a  lien  for  workmen 
whose  labor  and  material  went  into  buildings  and  other  struc- 
tures, so  essential  to  the  development  of  a  new  country?  These 
considerations  would  not  appeal  so  strongly  to  an  old  and  fully 
developed  country,  and  consequently  there  is  no  mechanics'  lien 
known  to  the  laws  of  England  today.  But  that  such  a  policy  is 
suited  to  the  needs  of  our  own  country  is  shown  by  its  universal 
adoption  and  retention  here. 

The  statutes  of  the  various  states  will  be  found  similar  in 
many  respects,  though  differing  widely  in  detail.  The  courts  in 
construing  them  have  entertained  very  different  views  as  to  their 
policy.  One  line  of  decisions  will  be  found  to  construe  them' 
liberally,  whilst  another  line  of  well-considered  decisions  will  be 
found  to  require  an  almost  literal  compliance  with  the  require- 
ments of  the  statute,  as  a  condition  of  securing  the  benefit  of  the 
lien  they  provide.  Probably  the  true  rule  of  construction  is  that 
adopted  in  Virginia,  declaring  that  the  remedial  portion  of  the 


§   417  WHO    MAY   TAKE   OUT    A    MECHANICS'    LIEN  813 

statute,  which  provides  for  enforcing  the  Hen  after  it  is  per- 
fected, is  to  be  liberally  construed,  but  that  portion  dealing  with 
the  right  to  the  existence  of  the  lien,  being  in  derogation  of  the 
common  law,  \s  to  be  strictly  construed.1 

§  417.    Who  may  take  out  a  mechanics'  lien. 

The  statute  provides  that  "All  artisans,  builders,  mechanics, 
lumber  dealers  and  other  persons  performing  labor  about  or 
furnishing  materials  for  the  construction,  repair  or  improvement 
of  any  building  or  structure  permanently  annexed  to  the  free- 
hold, and  all  persons  performing  any  labor  or  furnishing  ma- 
terial for  the  construction  of  any  railroad,  whether  they  be  gen- 
eral or  sub-contractors,  or  laborers,  shall  have  a  lien,  if  perfected 
as  hereinafter  provided,"  etc.2 

It  would  seem  that  this  statute  was  broad  enough  to  include 
an  architect,  whether  he  simply  provided  the  plans  and  specifica- 
tions, or,  in  addition  to  this,  superintended  the  construction  of 
the  building,  though  this  conclusion  is  not  free  from  doubt.3 

It  frequently  happens — as,  for  instance,  in  a  case  of  persons 
performing  labor  or  furnishing  material  for  the  construction  of 
a  railroad — that  persons  may  perfect  their  liens  either  under 
§  2475  or  §  2485  of  the  Code.  The  claimant  may  proceed  un- 
der either  section  but  cannot  proceed  under  both.  When  such 
a  person  has  perfected  his  lien  under  one  section,  he  cannot 
abandon  it  and  proceed  under  the  other.  He  is  confined  to  the 
section  under  which  he  first  perfects  his  lien.4 

The  term  "general  contractor,"  as  used  in  the  mechanics'  lien 
law,  is  not  necessarily  one  who  contracts  for  the  whole  build- 
ing, but  includes  all  persons  furnishing  materials  for,  or  doing 
work  upon,  a  building,  under  a  contract  made  by  such  person 
directly  with  the  owner  of  the  building,  whether  he  contracted 
for  the  whole  or  for  only  a  part  of  the  work-  or  material.  A 

1.  Clement  v.  Adams  Bros.-Payne  Co.,  113  Va.  547,  75   S.   E.   294; 
20   Amer.    &   Eng.    Enc.   of  Law    (2nd   Ed.),   278. 

2.  Code,  §  2475. 

3.  See  2  Jones  on  Liens,  §   1367;   Stryker  v.   Cassidy,  76  N.  Y.   50, 
32  Am.  Rep.  262,  and  note  264. 

4.  Code,   §   2485. 


814  MECHANICS'  LIENS  §§  418-419 

plumber,  a  plasterer,  a  carpenter,  a  bricklayer,  a  roofer  and  a 
material-man  are  all  general  contractors  for  the  same  building, 
if  the  contracts  are  severally  made  with  the  owner.5 

§  418.    Rights  of  assignee. 

Whilst  the  assignee  of  a  supply  claim  is  given  the  same  rights 
as  the  original  claimant,6  there  is  no  such  provision  as  to  the 
assignee  of  a  mechanics'  lien,  and  the  fact  that  a  statute  was 
deemed  necessary  to  give  such  right  to  the  assignee  in  the  one 
case,  might  be  thought  to  imply  the  absence  of  any  such  right  in 
the  assignee  of  a  mechanics'  lien,  but  suits  to  enforce  mechanics' 
liens  have  been  maintained  by  assignees  in  several  cases.7  In  the 
first  two  cases  cited  in  the  margin,  the  lien  seems  to  have  been 
perfected  prior  to  the  assignment,  but  in  the  other  case  it  was 
perfected  by  the  assignee,  and  it  is  now  settled  law  in  Virginia 
that  whenever  the  assignor  may  take  out  a  mechanics'  lien,  the 
assignee  may  perfect  it  and  prosecute  a  suit  in  equity  in  his  own 
name  to  enforce  it. 

§  419.    On  what  the  lien  may  be  taken  out. 

The  lien  is  given  upon  "such  building  or  structure  and  so  much 
land  therewith  as  shall  be  necessary  for  the  convenient  use  and 
enjoyment  of  the  premises,  and  upon  such  railroad  and  fran- 
chise." 

The  common  law  lien  in  favot  of  the  workman  upon  the  arti- 
cle into  which  his  work  has  gone,  has  found  a  rational  develop- 
ment by  statute  in  the  lien  in  favor  of  the  workman  on  the  house 
into  which  his  work  has  gone,  and,  as  the  house  would  be  use- 
less without  the  support  of  the  land  on  which  it  is  built,  the  lien 
has  been  extended,  not  to  other  land  of  the  owner,  but  only  to 
"so  much  land  therewith  as  may  be  necessary  for  the  convenient 
use  and  enjoyment  of  the  premises."  The  lien  on  the  land  arises 
purely  out  of  the  lien  on  the  house,  and  if  the  lien  on  the  house 

5.  Merchants    &    Mechanics    Savings    Bank   v.    Dashiell,    25    Gratt. 
616;  Boston,  etc.,  Co.  v.  Ches.  &  O.  R.  Co.,  76  Va.  180. 

6.  Code,   §  2487. 

7.  Pairo  v.   Bethell.   75   Va.    825;    laege   v.    Bossieux,   15    Gratt.   83; 
Bristol   Iron  &  Steel  Co.  v.  Thomas,  93  Va.   396. 


§    419  ON    WHAT   THE  UEN    MAY   BE  TAKEN   OUT  815 

ceases,  as>  for  instance,  by  the  destruction  of  the  house  by  fire, 
whilst  the  lien  would  still  exist  upon  the  brick,  iron  and  other 
materials  not  destroyed  by  the  fire,  it  would  seem  that,  under 
our  statute,  as  the  land  was  no  longer  "necessary  for  the  con- 
venient use  and  enjoyment"  of  these  remnants,  when  the  de- 
struction had  been  so  complete  as  to  leave  them  valuable  only 
for  material,  the  lien  on  the  land  would  cease.  The  question  has 
never  arisen  under  our  statute,  and  the  decisions  under  the  stat- 
utes of  other  states  are  conflicting.  The  conflict  seems,  however, 
to  arise  principally  out  of  the  difference  in  the  provisions  of  the 
various  statutes  on  this  subject.8 

It  has  been  held  that,  in  the  absence  of  proof  to  the  contrary, 
a  small  lot  in  a  town  is  necessary  to  the  convenient  use  and  en- 
joyment of  the  building  put  upon  it.9 

The  holder  of  a  mechanics'  lien  has  an  insurable  interest,  which 
he  may  protect  by  taking  out  a  policy  in  his  own  name,  and  it 
would  seem  on  principle  that,  even  where  the  policy  is  obtained 
by  and  in  the  name  of  the  owner  of  the  property,  ,on  the  de- 
struction of  the  building,  the  money  might  take  its  place,  and  the 
lienholder10  might  be  subrogated  to  the  same  interest  in  the  in- 
surance money  that  he  had  in  the  building,  which,  by  its  destruc- 
tion, has  been  converted  into  insurance  money,  but  the  weight 
of  authority  is  the  other  way.11 

The  material  must  be  "furnished  for  the  construction,  repair 
and  improvement"  of  some  building.  Therefore,  if  a  material 
man  sell  lumber  to  a  contractor  on  general  account,  and  not  for 
use  in  any  particular  building,  he  has  no  lien  on  the  building  in 
which  it  may  afterwards  be  used.12 

Again,  the  lien  is  specific  and  exists  upon  such  building  or 
structure  as  the  claimant  has  furnished  material  for,  or  per- 
formed labor  upon.  Therefore,  where  materials  are  furnished 

8.  See  2  Jones  on  Liens,  §§  1538-1540,  and  cases  cited  in  notes; 
Phillips  on  Mechanics'  Liens,  §§  12  and  42;  Vol.  42,  p.  319,  of  Cen- 

ral  Law  Journal,  where  the  adjudged  cases  are  cited  and  discussed. 

9.  Pairo   v.   Bethell,   75   Va.   825. 

10.  Wyman  v.  Wyman,  26  N.  Y.  253. 

11.  See  2  Jones  on  Liens,  §  1541;   Phillips  on  Mechanics'  Liens,  § 
9,  and  cases  there  cited. 

12.  2   Jones   on    Liens,   §   1325. 


MECHANICS'  UENS  §  419 

under  one  contract  for  several  buildings,  and  the  prices  paid  for 
the  different  buildings  are  specified,  there  must  be  several  liens 
on  each  building.  The  amount  due  for  labor  and  material  used 
in  one  house  cannot  constitute  a  lien  upon  another  house  in 
which  it  was  not  used.13  But  if  under  one  contract  several  build- 
ings are  to  be  erected,  and  an  entire  price  is  charged,  there  must 
be  a  joint  lien  on  all  the  buildings  for  the  whole  amount.  The 
lien  must  follow  the  contract.14 

Under  a  former  statute,  prior  to  the  amendment  hereinafter 
mentioned,  it  was  held  that  the  claimants  had  no  statutory  lien 
against  a  railroad  company,  and  that  if  railway  companies  were 
within  the  provisions  of  the  mechanics'  lien  law,  which  question 
the  court  did  not  pass  upon,  in  order  to  obtain  the  benefit  of  the 
lien  against  the  railroad  in  its  entirety,  the  required  memoran- 
dum and  account  would  have  to  be  filed  in  the  proper  clerk's 
office  of  every  county  and  corporation  through  which  the  road 
passed.15  Under  the  present  statute,  a  lien  is  given  upon  such 
railroads  and  their  franchises,  and  a  method  of  perfecting  such 
lien  is  prescribed  in  detail  by  the  statute.16 

Where  the  property  on  which  the  lien  is  sought  lies  within  the 
jurisdiction  of  a  corporation  court,  or  of  the  chancery  court  of 
the  city  of  Richmond,  but  outside  the  city  limits,  the  lien  must 
be  recorded  in  the  clerk's  office  of  the  circuit  court  of  the  county. 
It  cannot  be  recorded  in  the  city.17 

From  considerations  of  public  policy,  liens  frequently  cannot 
be  taken  out  on  property  which  would  fairly  come  within  the 
class  covered  by  the  terms  of  the  statute;  the  general  rule  being 
that  a  mechanics  lien  can  be  taken  out  on  no  property,  the  sale 
of  which  would  be  against  public  policy.  Mechanics'  lien  laws 
do  not  apply  to  public  buildings  or  structures  erected  by  states, 
cities  and  communities  for  public  use,  unless  the  statute  creating 
the  lien  expressly  so  provide.18 

13.  Oilman  v.  Ryan,  95  Va.  494,  28  S.   E.  875. 

14.  2  Jones  on   Liens,   §§   1310-14;   Id.,   §§   1326  and   1337;    Sergeant 
v.   Denby,  87  Va.  206,  12  S.   E.  402. 

15.  Boston,  etc.,  Co.  v.  Ches.  &  O.  R.  Co.,  76  Va.  180. 

16.  Code,    §§    2475,   2476. 

17.  Boston,  etc.,  Co.  v.  Ches.  &  O.  R.  Co.,  76  Va.  at  p.  185. 

18.  Hicks  v.  Roanoke  Brick  Co.,  94  Va.  741,  27  S.  E.  596.     On  the 


§   420      HOW  UEN  OF  GENERAL,  CONTRACTOR  IS  PERFECTED  817 

Churches  are  not  exempt  from  mechanics'  lien  on  grounds  of 
public  policy.19 

It  would  scarcely  seem  necessary  to  have  declared,20  that  where 
the  lien  is  for  repairs  only,  no  lien  shall  attach  to  the  property 
repaired,  unless  the  said  repairs  were  ordered  by  the  owner  or 
his  agent,  since  this  would  seem  to  be  the  law  independently  of 
such  a  provision.  It  is  not  believed  that,  by  either  building  or 
repairing,  a  man  can  be  improved  out  of  his  property,  without 
his  consent. 

The  statute21  expressly  provides  that  if  the  person  who  shall 
cause  the  building  or  structure  to  be  erected  or  repaired  owns 
less  than  a  fee  simple  estate  in  the  land,  only  his  interest  therein 
shall  be  subjected  to  the  mechanics'  lien.22 

§  420.    How  lien  of  general  contractor  is  perfected.23 

The  statute  provides  that  the  general  contractor  shall  file,  in 

subject  of  exemptions  from  public  policy,  see  2  Jones  on  Liens,  §§ 
1375-1381;  Phillips  on  Mechanics'  Liens,  §§  179-183.  On  sub-contract- 
ors' rights,  see  Phillips,  §  179a;  Frank  v.  Chosen  Freeholders,  39  N. 
J.  347;  Whiting  v.  Story  County  (Iowa),  37  Am.  Rep.  189;  Loving  v. 
Small  (Iowa),  32  Am.  Rep.  136;  Leonard  v.  City  of  Brooklyn,  71 
N.  Y.  498,  27  Am.  Rep.  80;  and  valuable  note  to  La  Crosse,  etc.,  R. 
Co.  v.  Vanderpool,  78  Am.  Dec.  696-97. 

19.  Note  to   La  Crosse,  etc.,   R.   Co.  v.  Vanderpool,   78  Am.    Dec. 
696.     In  Trustees  of  Franklin  St.  Church  v.  Davis,  85  Va.  193,  7  S. 
E.   245,   the   question  was   not   considered,   but   it  was   held   that  the 
lien  had  been  lost  for  other  reasons. 

20.  Code,   §   2475. 

21.  Code,  §  2483. 

22.  See,  also,  Carter  v.  Keeton,  112  Va.  307,  71  S.  E.  554. 

23.  Section    2476    of    the    Code    provides:      "A    general    contractor, 
in  order  to  perfect  the  lien  given  by  the  preceding  section,  shall  at 
any  time  after  the  work  is  done  and  the  material  furnished  by  him 
and  before  the  expiration  of  sixty  days  from  the  time  such  building, 
structure,   or  railroad  is   completed,  or  the  work  thereon  otherwise 
terminated,  file  in  the  clerk's  office  in  the  county  or  corporation  in 
which  the  building,  structure  or  railroad,  or  any  part  thereof  is,  or 
in  the  clerk's  office  of  the  chancery  court  of  the  city  of  Richmond, 
if   the    said    building,    structure   or    railroad,   or   any   part   thereof,   is 
within   the   corporation  limits   of  said   city,   an  account   showing  the 
amount  and  character  of  the  work  done  or  materials  furnished,  the 

—52 


818  MECHANICS'  UENS  §  420 

the  clerk's  office  of  the  circuit  or  corporation  court  of  the  county 
or  corporation  in  which  the  building,  structure  or  railroad,  or 
any  part  thereof,  is,  or  in  the  clerk's  office  of  the  chancery  court 
of  the  city  of  Richmond,  if  the  building,  structure  or  railroad  is 
within  the  corporate  limits  of  the  city,  (1)  an  account  showing 
the  amount  and  character  of  the  work  done,  or  materials  fur- 
nished; the  prices  charged  therefor;  the  payments  made,  if  any, 
and  the  balance  due — this  account  to  be  verified  by  the  oath  of 
the  claimant,  or  his  agent;  (2)  a  statement  attached  to  the  ac- 
count declaring  the  contractor's  intention  to  claim  the  benefit  of 
the  mechanics'  lien,  and  (3)  a  brief  description  of  the  property 
on  which  he  claims  the  lien.  The  clerk  is  required  to  record 
these  papers  in  a  book  to  be  kept  for  that  purpose,  called  the 
"Mechanics'  Lien  Record,"  and  to  index  the  same  as  well  in  the 
name  of  the  claimant  of  the  lien  as  the  owner  of  the  property, 
and  it  is  declared  that  "from  the  time  of  such  filing  all  persons 
shall  be  deemed  to  have  notice  thereof."  The  words  quoted 
would  seem  to  indicate  that  if  the  claimant  files  in  the  proper 
clerk's  office  the  papers  above  mentioned,  duly  verified,  he  will 
be  entitled  to  a  lien,  whether  the  clerk  ever  records  them  or  not, 
just  as  a  deed  which  is  duly  admitted  to  record  is  effective 
whether  it  is  ever  in  fact  recorded  or  not,  but  there  has  been  no 
decision  upon  this  branch  of  the  statute. 

The  Account. — Where  it  does  not  appear  that  the  materials 
furnished  by  a  contractor  for  a  building  were  contracted  for  at 
an  agreed  sum,  an  account,  which  fails  to  show  the  prices  charged 
for  the  items  of  which  the  account  is  composed,  is  insufficient 
to  sustain  a  mechanics'  lien.  The  omission  of  the  prices  charged 

prices  charged  therefor,  the  payments  made,  if  any,  and  the  bal- 
ance due,  verified  by  the  oath  of  the  claimant  or  his  agent  with  a 
statement  attached,  declaring  his  intention  to  claim  the  benefit  of 
said  lien  and  giving  a  brief  description  of  the  property  on  which  he 
claims  the  lien.  It  shall  be  the  duty  of  the  clerk  in  whose  office 
such  account  or  statement  shall  be  filed,  as  hereinbefore  provided, 
to  record  same  in  a  book  to  be  kept  for  that  purpose,  called  the 
mechanics'  lien  record,  and  to  index  the  same  in  the  name  as 
well  of  the  claimant  of  the  lien  as  of  the  owner  of  the  property,  and 
from  the  time  of  such  filing  all  persons  shall  be  deemed  to  have 
notice  thereof." 


§   420      HOW  UEN  OF  GENERAL  CONTRACTOR  IS  PERFECTED  819 

is  not  a  mere  inaccuracy  in  the  account,  but  is  an  entire  failure 
to  give  the  information  which  the  statute  requires.  Hence,  a 
statement,  "Amount  of  estimate,  $450.00,"  or  "To  balance  of 
account  rendered,  for  work  and  labor  done,  and  material  fur- 
nished, for  your  house,"  is  not  in  compliance  with  the  statute 
requiring  an  account  to  be  filed  showing  the  prices  charged.24 
If,  however,  the  work  or  the  material  has  been  contracted  for 
at  a  gross  sum,  and  this  is  set  out  in  the  account  filed,  all  the 
information  is  given  that  is  needed,  or  that  can  reasonably  be 
required.25 

Although  the  statute  requires  the  payments,  if  any,  on  the  ac- 
count to  be  also  stated,  yet,  •where  a  credit  for  machinery  pur- 
chased by  the  debtor,  as  well  as  some  other  credits  known  to  the 
debtor,  are  omitted,  the  lien  is  not  thereby  invalidated  when  it 
does  not  appear  in  the  record  that  the  contractor  knew,  at  the 
time  of  filing  his  account,  just  what  the  credits  were,  or  the 
amounts  thereof,  and  if  the  account  is  as  true  an  account  as  can 
be  made  under  the  circumstances  it  is  sufficient.26 

No  particular  form  of  verification  of  the  account  is  prescribed, 
and  the  certificate  of  a  notary  at  the  foot  of  the  account  filed, 
that  the  contractor  personally  appeared  before  him  in  his  county 
or  city  and  made  oath  to  the  correctness  of  the  account,  is  a 
sufficient  verification  under  the  statute.27 

Description  of  the  Property. — It  is  sufficient  "if  the  property 
can  be  reasonably  identified  by  the  description  given."28 

When  Claim  of  Lien  to  Be  Filed. — The  lien  must  be  perfected 
after  the  work  has  been  done,  or  the  materials  furnished,  and 
before  the  expiration  of  sixty  days  from  the  time  such  building, 

24.  Brown  v.  Cornwell,  108  Va.  129,  60  S.  E.  623;  Oilman  v.  Ryan, 
5  Va.  494,  28  S.  E.  875;   Shackleford  v.  Beck,  80  Va.   573. 

25.  Taylor  v.   Netherwood,  91  Va.  88,  20  S.   E.  888. 

26.  Rison  v.  Moon,  91  Va.  384,  22  S.  E.  165.     See,  also,  Richlands 
Hint  Glass  Co.  r.  Hiltebeitel,  92  Va.  91,  22  S.  E.  806. 

27.  Taylor  v.   Netherwood,  91  Va.   88,  20   S.   E.   888.     For  form  of 
iccount  and  affidavit,  and  of  declaration   of  intention  to  claim  lien, 
see    notes   to    §   2476,    Code    1904. 

28.  Taylor  v.  Netherwood,  91  Va.  88,  20  S.  E.  888;  Richlands  Flint 
Mass  Co.  z:  Hiltebeitel,  92  Va.  91,  20  S.   E.  806;  Jones  on   Liens,  § 

L421;    Code,   §   2478. 


820  MECHANICS'  WENS  §  420 

structure  or  railroad  is  completed,  or  the  work  thereon  other- 
wise terminated.  The  lien  must  not  be  taken,  out  too  soon,  nor 
deferred  too  late.  Impatience  and  delay  are  equally  dangerous. 
If  taken  out  too  soon,  or  too  late,  the  lien  is  void.29 

The  statute  does  not  undertake  to  say  how  much  work  shall 
be  done  or  materials  furnished  during  the  sixty  days  reserved  for 
the  taking  out  of  the  lien.  The  building  may  have  been  sub- 
stantially done  for  more  than  sixty  days,  but  if  the  "finishing 
touches"  have  been  put  on  in  that  time,  it  is  sufficient,  provided 
that  the  work  done  within  the  sixty  days  was  done  in  good  faith 
for  the  purpose  of  completing  the  contract,  and  not  for  the  pur- 
pose of  extending  the  time  during  which  the  lien  might  be  taken 
out.30 

In  the  case  of  Trustees  of  Franklin  Street  Church  v. 
Davis,  85  Va.  193,  7  S.  E.  245,  the  lien  was  filed  November  5, 
1885.  The  claimant  testified  that  the  work  was  substantially 
completed  in  the  first  days  of  November,  1884;  that  he  did  no 
work  on  the  building  from  November,  1884,  till  August,  1885 ; 
that  he  had  returned  and  put  on  the  "finishing  touches"  August 
20,  1885,  and  contended  that  the  time  for  perfecting  the  lien, 
ninety  days  at  that  time,  ran  from  the  latter  date.  The  "finishing 
touches"  were  topping  off  the  chimneys  and  penciling  the  brick 
work.  The  court  held  that  the  time  ran  from  the  substantial 
completion  of  the  building,  and  not  from  the  putting  on  of  the 
"finishing  touches,"  because  the  parties,  by  their  dealings  and 
agreement,  had  fixed  the  earlier  period  as  the  time  of  the  com- 
pletion of  the  building.  The  court  said :  "It  was  competent  for 
the  parties  to  agree  that  the  work  should  be  considered  as  com- 
pleted before  what  may  be  called  the  "finishing  touches"  were 
actually  put  upon  it ;  and  in  view  of  the  agreement  between  them, 
of  which  the  collection  of  the  second  payment  and  the  charge  and 
receipt  of  interest  is  evidence,  the  complainant  was  entitled  to 
file  his  lien  in  the  office  on  the  first  day  of  November."  It  would 

29.  Moore  v.   Rolin,   89  Va.   107,   15   S.   E.   520. 

30.  See  Jones   on   Liens,   §§   1427   and   1444;    Nichols  v.   Culver,    51 
Conn.    177;    McCarthy  v.    Groff,   48    Minn.    325,   51    N.    W.    Rep.   218; 
Bruce   v.    Berg,   8    Mo.   App.    204;    15   Am.    &    Eng.    Ency.    Law    (1st 
Ed.)    149,  and  cases  there   cited. 


§    421  REMEDIES  OF  SUB-CONTRACTOR  821 

seem  that  the  parties  by  their  agreement  had  changed  the  time 
for  the  running  of  the  lien,  from  the  putting  on  of  the  "finishing 
touches"  (the  time  from  which  it  would  have  otherwise  run)  by 
the  receipt  of  the  second  payment,  in  November,  1884,  which 
was  to  be  made  when  the  building  was  completed,  and  by  the 
calculation  of  interest  from  that  date. 

Where  the  last  charge  on  the  bill  was  for  work  for  the  month 
of  October,  and  the  lien  was  taken  out  on  November  8,  it  was 
held  that  it  sufficiently  appeared  that  the  lien  was  taken  out 
within  the  thirty  days  required  by  the  statute.31 

Where  nothing  to  the  contrary  appears,  a  running  account  is 
regarded  as  due  at  the  date  of  the  last  item.32 

All  the  statutory  provisions  for  a  mechanics'  lien  are  indis- 
pensable, and  the  omission  of  any  one  of  them  is  fatal.33 

§  421.    Remedies  of  sub- contractor. 

The  sub-contractor  is  given  three  different  methods  by  which 
he  may  secure  the  payment  of  the  amount  due  him.  He  may 
(1)  file  his  independent  lien;  (2)  he  may  take  steps  to  hold  the 
owner  of  the  building  personally  responsible;  or  (3)  he  may 
have  the  benefit  of  the  lien  taken  out  by  the  general  contractor. 

Independent  Lien. — If  the  sub-contractor  wishes  to  take  out 
his  independent  lien,  he  may  do  so  by  doing  just  what  the  gen- 
eral contractor  is  required  to  do,  and,  in  addition,  give  notice  in 
writing  to  the  owner  of  the  property,  or  his  agent,  of  the  amount 
and  character  of  his  claim ;  but  the  amount  secured  by  this  lien 
cannot  exceed  the  amount  in  which  the  owner  is  indebted  to  the 
general  contractor  at  the  time  the  notice  is  given,  or  shall  there- 
after become  indebted  to  the  general  contractor  upon  his  con- 
tract with  him  for  such  structure,  building  or  railroad ;  and  when 

31.  Richlands  Flint  Glass  Co.  v.  Hiltebeitel,  92  Va.  91,  20  S.  E.  888. 

32.  Osborne  v.  Big  Stone  Gap  Colliery  Co.,  96  Va.  58,  30  S.  E.  446. 
For   cases  where   the   lien  was   filed   too  late,   see   Boston,   etc.,   Co. 
v.  Ches.  &  O.  R.  Co.,  76  Va.  180;   Harrison  &  Bro.  v.  Homeopathic 
Asso.,   134   Penn.    St.    558,   19   Am.    St.    Rep.   714. 

33.  Trustees  Franklin   Street  Church  v.  Davis,  85  Va.  193,  7   S.  E. 
245;   Shackleford  v.  Beck,  80  Va.   573;   Davis  v.  Alvor,  94  U.  S.  545; 
S.  V.   R.   R.   Co.  v.   Miller,  80  Va.  821. 


822  MECHANICS'  UENS  §  421 

labor  has  been  performed,  or  work  done,  or  material  furnished 
for  one  who  is  himself  a  sub-contractor,  then  the  person  claim- 
ing the  lien  shall  also  give  a  like  notice  to  the  general  contractor, 
provided  that  the  amount  for  which  a  lien  may  be  perfected  by 
such  person  shall  not  exceed  the  amount  for  which  such  sub- 
contractor could  himself  claim  a  lien  under  the  statute.34 

The  right  of  the  sub-contractor  does  not  extend  to  what  be- 
comes due  for  extra  work  not  covered  or  contemplated  by  the 
original  contract,  and  paid  for  by  the  owner  as  soon  as  com- 
pleted ;  nor  does  the  failure  of  the  owner  to  retain  a  percentage 
of  the  contract  price,  when  he  is  authorized  to  do  so  by  the  terms 
of  his  contract  with  the  contractor,  render  the  owner  liable  to  a 
sub-contractor  for  the  per  cent,  of  the  contract  price  he  might 
have  retained.  The  provision  is  for  the  benefit  of  the  owner, 
and  not  for  the  benefit  of  the  sub-contractor.35 

Personal  Liability  of  the  Owner. — If  the  sub-contractor  is 
satisfied  with  the  personal  liability  of  the  owner,  he  may  render 
him  personally  liable  for  his  claim  in  the  following  manner: 

First :  He  must  give  notice  in  writing  to  the  owner,  or  his 
agent,  stating  the  nature  and  character  of  his  contract  and  the 
probable  amount  of  his  claim.36  This  preliminary  notice  need 
not  be  given  "before  performing  the  work  or  furnishing  the  ma- 
terials to  a  general  contractor,"37  but  may  be  given  (a)  before 
the  work  is  done,  or  the  materials  furnished,  or  (b)  whilst  the 
work  is  being  done,  or  material  is  being  furnished,  but  probably 
not  after  the  work  has  been  done,  or  material  has  been  fur- 
nished.38 This  notice  must  (1)  be  in  writing,  (2)  must  be  given 

34.  Code,   §  2477.     As   to  the  form  of  the  notice,  it  has  been  held 
that,   when   the   account   is    sufficient,   and   a   copy   thereof,    together 
with   a   statement   of  intention   to    claim   the   lien,   is    served    on    the 
owner  within  the  time  prescribed  by  the  statute,  it  is  sufficient  no- 
tice to  the  owner.    Taylor  v.  Netherwood,  91  Va.  88,  20  S.  E.  888. 

35.  Schrieber  v.  Citizens  Bank,  99  Va.  257,  38  S.  E.  134. 

36.  Code,  §  2479. 

37.  The  words  quoted  in  §  2479  of  the  Code  of  1887  were  stricken 
out  by  the  amendment  of  Acts,  1893-94,  p.  523. 

38.  Steigleder  v.  Allen,  113  Va.  686,  75  S.  E.  191.     When  Roanoke 
L.  &  I.  Co.  v.  Karn  &  Hickson,  80  Va.  589;  S.  V.  R.  R.  Co.  v.  Miller, 
Idem.  821,  and  N.  &  W.  R.  R.  Co.  -v.  Howison,  81  Va.  125,  were  de- 


§    421  REMEDIES  OF  SUB-CONTRACTOR  823 

to  the  owner,  or  his  agent,  and  (3)  must  state  (a)  the  nature 
and  character  of  the  contract  and  (b)  the  probable  amount  of 
the  claim. 

Second :  After  the  work  is  done,  or  the  material  is  furnished 
by  the  sub-contractor,  and  before  the  expiration  of  thirty  days 
from  the  time  such  building,  structure  or  railroad  is  completed, 
or  the  work  thereon  otherwise  terminated,  the  sub-contractor 
must  furnish  (1)  to  the  owner  of  the  building,  structure  or  rail- 
road, or  his  agent,  and  also  (2)  to  the  general  contractor,  a  cor- 
rect account  of  his  claim  against  the  general  contractor  for  the 
work  done,  or  material  furnished,  showing  the  amount,  due,  and 
this  account  must  be  verified  by  affidavit.  This  account  and  af- 
fidavit may  be  given  at  any  time  between  the  finishing  of  the 
sub-contractor's  work,  or  the  furnishing  of  his  material,  and 
thirty  days  after  the  completion  of  the  building  or  structure.  It 
is  not  necessary  that  the  sub-contractor  shall  wait  till  the  build- 
ing is  completed.39  If  these  requirements  are  complied  with, 
the  owner  becomes  personally  liable  for  the  amount  due  from 
the  general  contractor  to  the  sub-contractor,  provided  that 
amount  does  not  exceed  the  sum  the  owner  owes  the  general 
•contractor  at  the  time  the  notice  is  given,  or  afterwards  owes  him 
by  virtue  of  his  contract.  There  is  no  obligation  on  the  owner  to 
protect  the  sub-contractor,  unless  the  latter  has  complied  with 
the  provisions  of  the  mechanics'  lien  law.40 

A  sub-contractor  who  has  complied  with  the  provisions  of  the 
statute41  fixing  a  personal  liability  on  the  owner,  is  to  be  paid  in 

cided,  the  statute  did  not  require  the  probable  amount  of  the  claim 
to  be  stated  as  the  present  statute  does.  The  present  statute  re- 
quires the  account  and  affidavit  not  the  notice,  to  be  furnished  after 
completion.  The  amount  due  would  no  longer  be  probable,  after  the 
work  had  been  done  or  the  material  had  been  furnished.  See,  how- 
ever, note  to  §  2479  of  Pollard's  Code,  Vol.  3. 

39.  Norfolk  &  W.  R.  Co.  v.  Howison,  81  Va.  125;  Roanoke  L.  &  I. 
Co.  v.  Karn  &  Hickson,  80  Va.  589;  Shenandoah  R.  Co.  v.  Miller,  80 
Va.  821. 

40.  Schrieber  v.  Citizens  Bank,  99  Va.  257,  38  S.  E.  134;  University 
of  Va.  v.  Snyder.  100  Va.  567.  42  S.  E.  337. 

41.  Code,  §  2479. 


824  MECHANICS'"    UENS  §    421 

full  before  those  who  claim  liens  on  the  property  receive  any- 
thing.42 

Where  a  sub-contractor  refuses  to  do  work,  or  furnish  ma- 
terial, unless  the  owner  will  agree  to  pay  him,  it  seems  that,  if 
the  contractor  cannot  have  the  work  done  in  a  reasonable  time, 
and  the  owner  is  thus  compelled  to  guarantee  bills  of  sub-con- 
tractors, the  owner  is  entitled,  both  as  against  the  general  con- 
tractor and  other  sub-contractors,  to  deduct  the  amounts  for 
which  he  has  thus  become  responsible.43  The  statute44  gives  a 
simple  and  satisfactory  method  of  settling  disputed  accounts  be- 
tween the  general  contractor  and  sub-contractor  when  a  personal 
liability  in  favor  of  the  latter  has  been  fastened  on  the  owner, 
and  affords  full  protection  to  the  owner.  It  provides  for  an  ar- 
bitration, in  which  one  arbitrator  shall  be  selected  by  the  general 
contractor  and  another  by  the  sub-contractor,  and,  in  case  of 
their  disagreement,  an  umpire  to  be  selected  by  the  arbitrators; 
and  if  either  party  refuses  to  select  an  arbitrator,  then  the  mat- 
ter is  to  be  settled  by  an  action  at  law.45 

The  statute  giving  the  lien  to  sub-contractors  declares  that  the 
term  "sub-contractor"  shall  include  "all  contractors,  and  labor- 
ers, and  mechanics,  and  those  furnishing  materials,  as  provided 
in  §  2475  of  the  Code  and  Acts  amendatory  thereof,  other  than 
general  contractors."46 

Benefit  of  General  Contractor's  Lien. — The  sub-contractor  is 
given  a  third  remedy  dependent  on  the  action  of  the  general  con- 
tractor in  taking  out  a  lien.47  When  the  general  contractor  has 
perfected  his  lien,  the  sub-contractor  may  obtain  the  benefit 
thereof,  to  the  extent  of  his  debt,  by  a  written  notice  of  his 
claim  against  the  general  contractor  to  the  owner,  or  his  agent, 
before  the  amount  of  the  general  contractor's  lien  is  paid  off 
or  discharged. 

42.  Schrieber  v.  Citizens  Bank,  99  Va.  257,  38  S.  E.  134. 

43.  Schrieber  v.   Citizens   Bank,  supra. 

44.  Code,  §  2480. 

45.  Kirn  v.   Champion   Iron   Fence   Co.,   86  Va.   608,   10   S.    E.   885; 
Norfolk  &  W.  R.  Co.  v.  Howison,  81  Va.  125;   Roanoke  L.  &  I.  Co. 
v.  Karn  &  Hickson,  80  Va.  589. 

46.  Code,  §  2477. 

47.  Code,  §  2482. 


§    422  PROTECTION   OF  SUB-CONTRACTOR  825 

§  422.    Protection  of  sub-contractor  against  assignments 
and  garnishments. 

The  statute48  provides  that  no  assignment  of  a  debt,  or  any 
part  thereof,  due  or  to  become  due  to  a  general  contractor,  for 
the  construction,  erection  or  repairing  of  any  building,  structure 
or  railroad,  shall  be  valid  or  enforceable  by  the  assignee,  until 
the  claims  of  all  sub-contractors,  supply  men  and  laborers 
against  the  general  contractor,  for  labor  performed,  or  materials 
furnished,  in  and  about  the  construction,  erection  and  repairing 
of  such  building,  structure  or  railroad,  shall  have  been  satisfied, 
unless  the  sub-contractors,  supply  men  and  laborers  give  their 
consent  in  writing  to  the  assignment,  and  if  the  owner,  without 
such  written  assent,  makes  payment  to  such  assignee,  such  pay- 
ment affords  the  owner  no  protection  against  sub-contractors, 
supply  men  and  laborers  who  have  not  been  paid  for  work  done 
or  material  furnished  about  the  building,  structure  or  railroad 
for  which  the  payment  is  made.  The  statute49  further  provides 
that  the  debt  due  the  general  contractor  from  the  owner  cannot 
be  subjected  by  any  creditor  of  the  general  contractor,  whose 
debt  arose  in  any  other  manner  than  in  the  construction,  repair- 
ing or  erection  of  such  building,  structure  or  railroad  for  such 
owner,  until  all  the  sub-contractors,  supply  men  and  laborers 
shall  have  been  paid  for  their  labor  performed  and  material  fur- 
nished in  and  about  the  construction,  erection  or  repairing  of 
such  building,  structure  or  railroad. 

It  will  be  observed  that  the  owrner  must  exercise  much  more 
care  in  dealing  with  an  assignee  than  with  the  contractor.  He 
is  safe  in  making  payments  to  the  general  contractor,  so  long 
as  he  has  no  written  notice  of  the  debt  due  the  sub-contractor, 
whilst  if  he  pays  the  assignee,  the  owner  must  see  at  his  peril 
that  all  sub-contractors,  laborers  and  supply  men  are  paid,  or 
that  they  give  their  written  assent  to  the  assignment,  though  he 
may  have  no  possible  means  of  ascertaining  who  they  are.  This 
statute,  however,  does  not  prohibit  payments  by  the  owner  to 
an  assignee  whose  claim  is  due  from  the  general  contractor  for 
material  or  work  furnished  for  the  erection  of  the  building,  on 

48.  Code,  §  2482a,  cl.  1. 

49.  Code.  §  2482a,  Clause  2. 


826  MECHANICS'  UENS  §§  423-424 

account  of  which  the  owner  is  indebted.  By  such  payments  the 
contract  price  of  the  building  goes  to  those  who  did  the  work 
and  furnished  the  material,  which  is  just  what  the  act  was  in- 
tended to  accomplish.50 

§  423.    Mechanics'  lien  record. 

The  memorandum  prescribed  by  the  statute  having  been  filed 
with  the  clerk,  it  is  made  the  duty  of  that  official51  to  record  the 
same  in  a  book  to  be  kept  by  him  for  that  purpose,  called  "Me- 
chanics' Lien  Record,"  and  to  index  the  same  in  the  name  as 
well  of  the  claimant  of  the  lien  as  of  the  owner  of  the  property, 
and  from  the  time  of  such  filing  all  persons  are  deemed  to  have 
notice  thereof. 

It  may  be  observed  that  the  mechanics'  lien  must  be  recorded 
in  "a  book  kept  by  the  clerk  for  that  purpose,"  whilst  a  supply 
lien  must  be  recorded  in  the  deed  book.62 

Attention  is  again  called  to  the  fact  that  the  statute  seems  to 
give  notice  of  the  lien  to  all  persons  from  the  filing  of  the  lien, 
whether  it  is  ever  actually  recorded  or  not. 

§  424.    Conflicting  liens. 

The  statute,53  in  its  practical  application,  gives  rise  to  some 
problems  exceedingly  difficult  of  solution,  not  because  of  the 
terms  of  the  statute,  but  because  of  the  subject  with  which  it 
undertakes  to  deal. 

It  first  deals  with  the  case  of  a  person  having  less  than  a  fee 
simple  estate  in  the  land  on  which  is  situated  the  building  or 
structure  erected  or  repaired,  and  provides  that  only  his  interest 
therein  shall  be  subject  to  the  mechanics'  lien. 

In  the  matter  of  conflicting  liens  on  the  property,  the  statute 
provides  for  the  following  cases : 

First :  Where  the  lien  was  created  on  the  land  before  the 
work  was  begun,  or  the  materials  were  furnished,  it  is  the  first 

50.  Schrieber  v.  Bank,  99  Va.  257,  38  S.  E.  134. 

51.  Code,  §  2476. 

52.  Code,  §§  2485  and  2486. 

53.  Code,  §  2483. 


§  424  CONFLICTING  LIENS  827 

lien  on  the  land,  and  the  second  lien  on  the  building  or  structure, 
and  when  the  property  is  sold,  the  lien  or  encumbrance  created 
first  is  preferred  in  the  distribution  of  the  proceeds  of  sale  only 
to  the  extent  of  the  estimated  value  of  the  land  at  the  time  of 
the  sale,  which  value  must  be  fixed  before  the  sale,  exclusive  of 
the  value  of  the  building  or  structure.  In  other  words,  the  first 
lienor  has  the  prior  lien  on  so  much  of  the  purchase  money  as 
corresponds  to  the  estimated  value  of  the  land  at  the  time  of 
the  sale,  without  the  building,  whilst  the  claimant  under  the  me- 
chanics' lien  law  has  the  first  lien  upon  the  remainder  of  the 
purchase  money.  The  scheme  of  distribution  is  a  preference, 
not  a  ratio.5* 

Second:  Where  the  lien  or  encumbrance  on  the  land  was 
created  after  the  work  was  commenced,  or  the  materials  fur- 
nished, the  lien  in  favor  of  the  person  performing  the  work,  or 
furnishing  the  material,  is  prior  both  as  to  the  land  and  the 
building. 

laege  v.  Bossieux,  15  Gratt.  83,  was  decided  before  the  me- 
chanics' lien  statute  had  undertaken  to  deal  with  the  question  of 
priorities.  There  a  building  fund  company  agreed  to  advance  to 
one  of  its  members  money  to  build  a  house  on  his  lot.  A  lien 
was  taken  upon  the  lot,  and  the  buildings  to  be  erected  upon  it, 
to  secure  the  advances  made  and  to  be  made.  The  mechanics' 
lien  was  then  recorded,  and  subsequently  the  balance  of  the  loan 
was  paid  to  an  assignee  of  the  mechanic,  with  the  knowledge  on 
his  part  that  it  came  from  the  building  fund  company,  and  that 
the  building  fund  company  claimed  priority  for  its  lien  on  the 
property.  The  court  held  that  the  company  was  entitled  to 
priority  over  the  mechanics'  lien  for  the  advances  made  after 
the  lien  was  recorded,  as  well  as  for  those  made  before.  It 
would  seem  that  under  the  peculiar  circumstances  of  the  case 
the  same  result  would  follow  now,  as  the  deed  of  trust  went  to 
record  before  the  work  was  begun,  and  the  money  paid  out  after 
the  work  was  begun  was  secured  in  it  and  was  paid  by  the  deed 
of  trust  creditor  directly  to  the  claimant,  who  received  it  know- 
ing that  the  deed  of  trust  creditor  asserted  a  priority  over  him. 

54.  Fid.   L.  &  T.  Co.  v.  Dennis,  93  Va.  504,  25  S.   E.  546. 


828  MECHANICS'  UENS  §  425 

§  425.    Proceedings  to  enforce  mechanics'  liens. 

It  is  provided  by  statute  that  mechanics'  liens  may  be  en- 
forced in  equity;  that  there  shall  be  no  priority  among  them, 
except  that  the  lien  of  a  sub-contractor  shall  be  preferred  to 
that  of  his  general  contractor,  and  that,  when  a  suit  is  brought 
to  enforce  such  lien,  all  parties  entitled  to  such  liens  on  the 
property,  or  any  part  thereof,  may  come  in  by  petition  with  the 
same  effect  as  though  each  petitioner  had  brought  an  independ- 
ent suit.55  It  is  further  provided  by  statute  that  no  suit  to  en- 
force such  lien  "shall  be  brought  after  six  months  from  the  time 
when  the  whole  amount  covered  by  such  lien  has  become  pay- 
able; provided,  however,  that  the  filing  of  a  petition  to  enforce 
any  such  lien  in  any  suit  wherein  such  petition  may  be  properly 
filed  shall  be  regarded  as  the  institution  of  a  suit."56  This  is  a 
limitation  of  the  right,  and  not  merely  of  the  remedy ;  and  hence 
a  bill  seeking  to  enforce  such  lien  must  affirmatively  show  on 
that  the  suit  is  brought  within  the  time  prescribed  by  the  stat- 
ute, else  it  will  be  bad  on  demurrer.57  But  although  the  bill 
does  not  allege  that  the  suit  was  brought  in  six  months  after  the 
whole  account  had  become  payable,  yet  if  it  does  allege  the  dates 
on  which  the  bill  sued  on  became  due,  the  court  will  take  judicial 
notice  of  the  time  when  the  suit  was  instituted;  and  if  it  thus 
appears  that  the  bill  was  filed  within  six  months  after  the  whole 
account  became  payable,  the  bill  will  be  good,  and  a  demurrer 
thereto  will  be  overruled.58  If  a  suit  be  brought  by  a  sub-con- 
tractor to  enforce  a  mechanics'  lien  which  has  been  duly  recorded, 
and  the  general  contractor  is  made  a  party  defendant,  and  his 
recorded  lien  is  properly  set  forth  in  the  bill,  such  suit  stops  the 
act  of  limitation  from  running,  not  only  on  the  complainant's 
lien,  but  also  on  the  lien  of  the  general  contractor  and  all  claim- 
ing as  contractors  under  him,  and  operates  to  suspend  any  fur- 
ther suit  by  any  one  or  more  of  them  during  the  pendency  of  the 
suit  instituted  by  the  sub-contractor.59  If  a  suit  to  enforce  a 

55.  Code,  §  2484. 

56.  Code,  §  2481. 

57.  Savings  Bank  v.  Powhatan  Clay  Co.,  102  Va.  274,  46  S.  E.  294. 

58.  Sands  v.  Stagg,  105  Va.  444,  52  S.  E.  633. 

59.  Spiller  v.  Wells,  96  Va.   598,  32  S.   E.   46. 


§    425  PROCEEDINGS  TO  ENFORCE  MECHANICS'  LIENS  829 

mechanics'  lien  is  brought  within  due  time  against  the  debtor 
upon  whose  property  the  lien  rests,  the  failure  to  implead  sub- 
sequent lienors  within  six  months  does  not  defeat  the  lien  so  far 
as  such  encumbrances  are  concerned.  They  are  proper,  but  not 
necessary  parties  to  such  suit,  and  may  be  brought  in  at  a  sub- 
sequent time.60 

Usually,  the  statute  of  limitations  is  a  personal  defence,  and 
can  be  relied  on  only  by  the  debtor,  but  it  has  been  held  in  Vir- 
ginia that,  in  suits  to  enforce  a  mechanics'  lien,  although  the 
defendant  is  still  living,  one  creditor  may  set  up  the  statute 
against  the  claims  of  another.61 

When  a  court  of  equity  has  obtained  jurisdiction  of  the  sub- 
ject-matter, by  virtue  of  the  statute  giving  jurisdiction  in  me- 
chanics' lien  cases,  it  goes  on  to  adjust  the  rights  of  all  the  par- 
ties, to  allow  compensation  for  defects,  to  determine  priorities 
of  liens,  to  give  relief  in  cases  of  part  performance,  and  to  grant 
complete  relief.62 

60.  Monk  v.  Exposition  Corp.,  Ill  Va.  121,  68  S.  E.  280. 

61.  McCartney  v.  Tyrer,  94  Va.  198,  26  S.  E.  419.     For  criticism  of 
this  case,  see  ante,  §  223. 

62.  laege  v.  Bossieux,  15  Gratt.  83;  Bailey  Construction  Co.  v.  Pur- 
cell,  88  Va.  300,  13   S.   E.  450;  Rison  v.   Moon,  91  Va.   384,  22   S.   E. 
165;  Taylor  v.  Netherwood,  91  Va.  88,  20  S.  E.  888;  Pace  v.  Moorman, 
99  Va.  246,  37  S.  E.  911. 

Kirn  v.  Champion  Iron  Fence  Co.,  86  Va.  608,  10  S.  E.  317,  and 
Norfolk  &  W.  R.  Co.  v.  Howison,  81  Va.  125,  were  both  actions  of 
assumpsit  to  enforce  personal  liability  of  owner,  and  rules  were  laid 
down  as  to  what  must  be,  and  what  need  not  be,  averred  and  proved 
by  the  claimants. 

The  first  case  was  decided  by  a  court  of  three  judges,  Lewis,  P., 
and  Hinton,  J.,  being  absent.  Of  the  three  judges  who  sat  in  the 
case,  Richardson,  J.,  dissented  from  the  opinion  of  the  court  sus- 
taining a  demurrer  to  the  declaration,  because  the  performance  of 
the  contract  in  the  time  agreed  on  between  the  general  contractor 
and  the  sub-contractor  was  not  averred  and  proved. 

The  latter  case  held  that  it  need  not  be  alleged  or  proved  in  a 
suit  by  a  sub-contractor  that  the  account  was  approved  by  the  general 
contractor,  or  that,  after  ten  days'  notice,  he  had  failed  to  object  to 
it,  or  that  the  same  had  been  ascertained  to  be  due  to  the  sub-con- 
tractor according  to  sec.  6,  chap.  115  of  Code  of  1873.  All  these  were 
deemed  to  be  matters  of  defence,  and  constituted  no  part  of  plain- 
tiff's statement  of  his  case. 


830  MECHANICS'  UENS  §  425 

In  a  suit  to  enforce  a  mechanics'  lien,  real  property  of  value 
should  be  sold  on  a  reasonable  credit,  unless  peculiar  circum- 
stances take  it  out  of  the  rule,  and  these  circumstances  should 
appear  on  the  record.63 

A  sale  for  cash  enough  to  pay  the  amount  of  the  lien  is  proper 
when  that  amount  is  but  a  small  proportion  of  the  whole  value 
of  the  property.64 

There  is  no  requirement  that  property  shall  be  rented  out  to 
pay  off  a  mechanics'  lien,  and  it  would  seem  in  all  cases  where 
the  claimant  has  established  his  lien  that  he  is  entitled  to  a  sale, 
but  a  decree  for  renting  has  been  affirmed  on  appeal.  The  ap- 
peal, however,  was  by  the  owner,  and  the  contractor  does  not 
seem  to  have  insisted  on  his  right  to  a  sale.65 

It  has  been  held  that,  although  a  bill  was  filed  by  a  sub-con- 
tractor to  enforce  his  lien  against  the  real  estate  of  the  owner, 
yet  if  the  account  was  established,  and  the  owner  admitted  funds 
in  his  hands  and  his  readiness  to  pay,  it  would  be  a  vain  and  use- 
less act  to  subject  property  to  the  payment  of  the  lien,  and  that 
it  Was  not  error  to  give  a  personal  decree  against  the  owner  and 
the  general  contractor  for  the  amount  of  the  account.66  Upon 
a  bill  to  enforce  a  mechanics'  lien  and  asking  for  a  personal  decree 
against  the  owner,  the  general  contractor  and  his  assignee,  and 
for  general  relief,  although  the  plaintiff  failed  to  establish  his 
mechanics'  lien,  he  may  have  a  personal  decree  against  the  as- 
signee of  the  general  contractor  for  the  amount  found  to  be  due 
to  the  sub-contractor  from  the  assignee.67  So,  also,  in  a  suit  by 
a  general  contractor  against  the  owner  to  enforce  his  mechan- 
ics' lien,  to  which  the  party  with  whom  he  contracted  is  made  a 
defendant,  although  it  shall  appear  that  the  general  contractor 
is  not  entitled  to  a  lien  because  the  person  causing  the  improve- 
ments to  be  made  was  neither  the  owner  of  the  property  nor  the 
agent  of  the  owner,  yet  the  general  contractor  may  take  a  per- 

63.  Pairo  v.  Bethell,  75  Va.  825. 

64.  Lester  v.   Pedigo,  84  Va.   309,  4   S.    E.   703. 

65.  Rison  v.  Moon,  91  Va.  84,  22  S.  E.  165. 

66.  Taylor  v.   Netherwood,  98  Va.  88,  20  S.   E.  888.     See  note  by 
Judge  Burks,  1  Va.  Law  Reg.  34-36,  stating  what  decree  should  have 
been  entered  in  the  case. 

67.  Johnston  v.  Bunn,  108  Va.  490,  62  S.  E:  341. 


§  426      HOW  A  MECHANICS'  LIEN  MAY  BE  WAIVED  OR  LOST       831 

sonal  decree  against  the  person  with  whom  he  contracted  for 
the  amount  shown  to  be  due.68 

§  426.    How  a  mechanics'  lien  may  be  waived  or  lost. 

When  the  claimant  undertakes  to  enforce  his  mechanics'  lien 
he  may  find  that  he  has  lost  it  in  any  one  of  a  variety  of  ways.69 

Amongst  the  most  common  methods  by  which  the  mechanic 
loses -his  lien  are:  (1)  By  not  bringing  suit  within  six  months 
after  the  whole  of  the  amount  covered  by  the  lien  has  become 
payable;  (2)  by  agreement;  (3)  by  estoppel;  (4)  by  the  con- 
tractor's abandoning  the  contract;  (5)  by  taking  security;  (6) 
by  destruction  of  the  building. 

The  question  as  to  whether  a  mechanics'  lien  is  waived  by 
taking  additional  security  is  frequently  an  interesting  one.  It 
would  seem  that  in  this  state,  following  the  analogy  of  the  de- 
cisions in  reference  to  the  release  of  vendors'  liens  and  other 
securities,  the  question  of  the  waiver  or  release  of  the  lien  is 
dependent  upon  the  intention  of  the  parties,  as  gathered  from 
all  the  circumstances  surrounding  the  transaction.  Taking  a 
personal  judgment  against  the  person  liable  for  the  debt  secured 
by  the  lien  does  not  operate  as  a  release  or  merger  of  the  lien 
any  more  than  the  taking  of  a  personal  judgment  on  a  debt  se- 
cured by  a  vendor's  lien,  or  a  deed  of  trust.  The  remedies  upon 
the  debt  and  security  are  distinct  and  concurrent,  and  either  or 
both  may  be  pursued.70  Taking  the  debtor's  negotiable  note,  the 
maturity  of  which  does  not  extend  beyond  the  time  within  which 
a  lien  may  be  asserted,  in  the  absence  of  an  express  agreement 
to  that  effect,  does  not  amount  to  a  waiver  of  the  right  of  the 
lien,  but  the  negotiable  note  must  be  produced  at  the  trial,  or  the 
debtor  secured  against  its  subsequent  production,  or  the  lien  can- 
not be  enforced.71  If,  however,  the  note  extends  the  credit  be- 

68.  Carter  v.  Keeton,  112  Va.  307,  71  S.  E.  554. 

69.  Code,   §  2481;   2  Jones  on   Liens,   Chapter  38;   Phillips  on   Me- 
chanics' Liens,  Chapter  272. 

70.  2  Jones  on  Liens,  §  1622,  and  cases  cited. 

71.  2  Jones    on    Liens,    §§    1532-1537,    and  cases  cited;    Steamboat 
Charlotte  v.  Hammond,  9  Mo.  58,  43  Am.   Dec.  536;   Bailey  v.   Hull, 
11  Wis.  289,  78  Am.  Dec.  706;   McMurray  v.  Taylor,  30  Mo.  363,  77 
Am.  Dec.  611;   Phillips  on  Mechanics'  Liens,  §§  276-8. 


832  MECHANICS'  LIENS 

yond  the  six  months  fixed  by-  the  statute  for  the  institution  of 
the  suit  to  enforce  the  lien,  no  suit  can  be  brought  till  the  note 
is  due;  and,  as  the  limitation  fixed  by  the  mechanics'  lien  statute 
then  applies,  the  taking  of  the  note  maturing  more  than  six 
months  after  the  time  when  the  whole  amount  covered  by  the 
lien  has  become  payable  would  operate  as  a  virtual  waiver  of 
the  lien.72  In  such  cases  it  would  frequently  become  an  inter- 
esting question  to  determine  when  "the  whole  amount  covered 
by  such  lien  has  become  payable."  This  would  generally  appear 
from  the  lien  itself,  and  it  is  certainly  eminently  wise  and  just 
that  creditors  and  purchasers  from  the  owner  who,  by  an  ex- 
amination of  the  recorded  lien,  found  themselves  protected 
against  suits  by  the  expiration  of  the  six  months  fixed  by  stat- 
ute, should  not  be  put  in  peril  by  the  owner's  giving  evidences 
of  debt  extending  the  statutory  period  for  the  suit. 

In  the  case  of  laege  v.  Bossieux,73  the  suit  was  brought  under 
a  statute  providing  that  the  lien  shall  not  be  in  force  more  than 
six  months  from  the  time  when  the  money,  or  the  last  instal- 
ment of  the  money  to  be  paid  under  the  contract,  shall  become 
payable,  unless  a  suit  in  equity  to  enforce  the  lien  shall  have  been 
commenced  within  the  said  six  months,  and  the  court  held  that 
the  suit  might  be  brought  after  the  first  instalment  had  fallen 
due,  without  waiting  for  the  remaining  instalments  to  become 
due,  and  that  a  sale  might  be  decreed  for  the  payment  of  all  the 
instalments  that  had  fallen  due  up  to  the  time  of  the  decree,  with 
leave  to  the  claimant  to  obtain  satisfaction  out  of  the  surplus, 
if  any  there  might  be,  for  the  instalments  not  due  at  the  time  of 
the  decree. 

It  has  been  held  in  Kentucky,  Mississippi,  Massachusetts  and 
probably  other  states,  that  the  taking  of  a  note  maturing  after 
the  time  fixed  by  statute  for  bringing  a  suit  to  enforce  a  me- 
chanics' lien,  operates  as  a  waiver  of  the  lien,  and  it  is  believed 
that  the  same  rule  will  be  applied  in  Virginia.74  Of  course,  the 

72.  2  Jones  on   Liens,  §§   1535-6;   laege  v.   Bossieux,   15   Gratt.   83; 
Trustees  Franklin  Street  Church  v.  Davis,  85  Va.  193,  7  S.  E.  245. 

73.  15  Gratt.  83. 

74.  Pryor  v.   White,  16  B.   Mon.  Rep.   605;   Jones  v.  Alexander,  10 
Sm.  &  M.  627;  McClallan  v.  Smith,  11  Cush.  (65  Mass.)  238.    The  first 
two  of  these  cases  are  commented  on  without  disapproval  in  laege  v. 
Bossieux,  15  Gratt.  83. 


§  426      HOW  A  MECHANICS'  LIEN  MAY  BE  WAIVED  OR  LOST       833 

claimant  will  not  have  any  lien  if  he  fails  to  perfect  it  within  the 
time  and  manner  prescribed  by  the  statute.75 

Where  collateral  security  is  taken  for  the  debt  for  which  a 
mechanics'  lien  may  be  taken  out,  the  question  of  a  waiver  or 
release  depends  upon  the  intention  of  the  parties,  and  it  is  be- 
lieved that  in  this  State  there  is  no  waiver  unless  the  intention 
of  the  party  entitled  to  waive  it  be  clearly  shown.76 

75.  Trustees  of  Franklin   St.  Church  v.   Davis,  85  Va.  193,  7  S.   E. 
245. 

76.  Bearing  on  this  question,  see  Coles  v.   Withers,  33  Gratt.  186; 
Smith  v.  Blackwell,  31  Gratt.  291;  Brockenbrough  v.  Brockenbrough, 
31  Gratt.  580;  Morriss  v.  Harveys,  75  Va.  726. 

—S3 


PART  II 

Stephen's  Rules  of  Pleading 


CHAPTER  XLVIII. 
PRINCIPAL  RULES  OF  PLEADING. 

§  427.  Object  of  pleading — Principal  rules  of  pleading. 

§  428.  Materiality  of  issue. 

§  428a.   Singleness  of  issue. 

§  429.  Certainty  of  issue. 

§  427.    Object  of  pleading — Principal  rules  of  pleading. 

The  account  of  the  course  of  an  action  being  now  concluded, 
and  a  view  thus  obtained  of  the  general  form  and  manner  of 
pleading,  and  its  connection  with  other  parts  of  the  suit,  it  is 
next  proposed  to  investigate  its  principal  or  fundamental  rules, 
and  to  explain  their  scope  and  tendency  as  parts  of  an  entire 
system.  For  this  purpose,  some  observations  shall  be  premised, 
relative  to  the  manner  in  which  that  system  was  formed,  and  the 
objects  which  it  contemplates. 

The  manner  of  allegation  in  our  courts  may  be  said  to  have 
been  first  methodically  formed,  and  cultivated  as  a  science  in 
the  reign  of  Edward  I.  From  this  time,  the  judges  began 
systematically  to  prescribe  and  enforce  certain  rules  of  state- 
mot  t,  of  which  some  had  been  established  at  periods  consid- 
erably more  remote,  and  others  apparently  were  then,  from  time 
to  time,  first  introduced.  None  of  them  seems  to  have  been  orig- 
inally of  legislative  enactment,  or  to  have  had  any  authority 
except  usage  or  judicial  regulation;  but  from  the  general  per- 
ception of  their  wisdom  and  utility,  they  acquired  the  character 
of  fixed  and  positive  institutions,  and  grew  up  into  an  entire 
and  connected  system  of  pleading.  This  system,  which  in  its 
essential  parts  still  remains  in  practice  unaltered,  appears  to  have 
been  originally  devised  in  a  view  to  certain  objects  or  results, 
which  it  will  be  necessary 'to  the  right  apprehension  of  the  sub- 
ject of  this  chapter  here  to  explain. 

The  pleadings  (as  appears  in  the  preceding  chapters)  are  so 
conducted  as  always  to  evolve  some  question,  either  of  fact  or 
law.  disputed  between  the  parties  and  mutually  proposed  and 


838  PRINCIPAL  RULES   OF   PLEADING  §   427 

accepted  by  them  as  the  subject  for  decision;  and  the  question 
so  produced  is  called  the  issue. 

As  the  object  of  all  pleading  or  judicial  allegation  is  to  ascer- 
tain the  subject  for  decision,  so  the  main  object  of  that  system 
of  pleading  established  in  the  common  law  of  England,  is  to  as- 
certain it  by  the  production  of  an  issue.  And  this  appears  to  be 
peculiar  to  that  system.  To  the  best  of  the  author's  information, 
at  least,  it  is  unknown  in  the  present  practice  of  any  other  plan  of 
judicature.  In  all  courts,  indeed,  the  particular  subject  for  deci- 
sion must,  of  course,  be  in  some  manner  developed  before  the  de- 
cision can  take  place;  but  the  methods  generally  adopted  for  this 
purpose  differ  widely  from  that  which  belongs  to  the  English  law. 

By  the  general  course  of  all  other  judicatures,  the  parties  are 
allowed  to  make  their  statements  at  large  (as  it  may  be  called) 
and  with  no  view  to  the  extrication  of  the  precise  question  in 
controversy;  and  it  consequently  becomes  necessary,  before  the 
court  can  proceed  to  decision,  to  review,  collate,  and  consider  the 
opposed  effect  of  the  different  statements,  when  completed  on 
either  side,  to  distinguish  and  extract  the  points  mutually  ad- 
mitted, and  those  which,  though  undisputed,  are  immaterial  to  the 
cause,  and  thus,  by  throwing  off  all  unnecessary  matter,  to  arrive 
at  length  at  the  required  selection  of  the  point  to  be  decided.  This 
retrospective  development  is,  by  the  practice  of  most  courts,  pri- 
vately made  by  each  of  the  parties  for  himself,  as  a  necessary 
medium  to  the  preparation  and  adjustment  of  his  proofs;  and  is 
also  afterwards  virtually  effected  by  the  judge,  in  the  discharge  of 
his  general  duty  of  decision;  while,  in  some  other  styles  of  pro- 
ceeding, the  course  is  different,  the  point  for  decision  being  se- 
lected from  the  pleadings  by  an  act  of  the  court  or  its  officer,  and 
judicially  promulgated  prior  to  the  proof  or  trial.  The  common 
law  of  England  differs  (it  will  be  observed)  from  both  methods, 
by  obliging  the  parties  to  come  to  issue ;  that  is,  so  to  plead,  as  to 
develop  some  question  (or  issue)  by  the  effect  of  their  own  alle- 
gations, and  to  agree  upon  this  question  as  the  point  of  decision 
in  the  cause,  thus  rendering  unnecessary  any  retrospective  opera- 
tion on  the  pleadings,  for  the  purpose  of  ascertaining  the  matter 
in  controversy. 

The  author  is  of  opinion  that  this  peculiarity  of  coming  to  is- 
sue, took  its  rise  in  the  practice  of  oral  pleading.  It  seems  a  nat- 


§   427   OBJECT  OF  PLEADING — PRINCIPAL  RULES  OF  PLEADING      839 

ural  incident  of  that  practice  to  compel  the  pleaders  to  short  and 
terse  allegations,  applying  to  each  other  by  way  of  answer,  in 
somewhat  of  a  logical  form,  and  at  length  reducing  the  contro- 
versy to  a  precise  point.  For  while  the  pleading  was  merely  oral, 
and  not  committed  by  any  contemporaneous  record  to  writing  (a 
state  of  things  which  may  be  distinctly  traced  among  the  yet  ex- 
tant archives  of  the  early  continental  jurisprudence),  the  court 
and  the  pleaders  would  have  to  rely  exclusively  on  their  memory 
for  retaining  the  tenor  of  discussion ;  and  the  development  of  some 
precise  question  or  issue  would  then  be  a  very  convenient  prac- 
tice, because  it  would  prevent  the  necessity  of  reviewing  the  dif- 
ferent statements,  and  leave  no  burden  on  the  memory,  but  that 
of  retaining  the  question  itself  so  developed.  And  even  after  the 
practice  of  recording  was  introduced,  the  same  brief  and  logical 
forms  of  allegation  would  naturally  continue  to  be  acceptable, 
while  the  pleadings  were  still  viva  voce,  and  committed  to  record 
on  the  inconvenient  plan  of  contemporary  transcription. 

A  co-operative  reason  for  coming  to  issue,  was  the  variety  of 
the  modes  of  decision  which  the  law  assigned  to  different  kinds 
of  questions.  The  various  modes  enumerated  in  the  first  chapter 
as  still  recognized  in  practice,  were  (with  several  others  now 
abolished)  in  full  vigor  and  observance  in  the  days  of  oral 
pleading;  and  evidently  made  it  necessary  to  settle  publicly  be- 
tween the  parties,  the  precise  point  on  which  their  controversy 
turned.  For  on  the  nature  of  this  depended  the  very  manner  of 
the  subsequent  decision,  and  the  form  of  proceeding  to  be  insti- 
tuted for  that  purpose.  As  questions  of  law  were  decided  by  the 
judges,  and  matters  of  fact  were  referred  to  other  kinds  of  inves- 
tigations, it  was,  in  the  first  place,  necessary  to  settle  whether  the 
question  in  the  cause,  or  issue,  was  a  matter  of  law  or  fact. 
Again,  if  it  happened  to  be  a  matter  of  fact,  it  required  to  be  de- 
veloped in  a  form  sufficiently  specific  to  show  what  was  the 
method  of  trial  appropriate  to  the  case.  And  unless  the  state  of 
the  question  were  thus  adjusted  between  the  parties,  it  is  evident 
that  they  would  not  have  known  whether  they  were  to  put  them- 
selves on  the  judgment  of  the  court,  or  to  go  to  trial;  nor,  in  the 
latter  case,  whether  they  were  to  prepare  themselves  for  trial  by 
jury,  or  for  one  of  the  other  various  modes  of  deciding  the  mat- 
ter of  fact. 


840  PRINCIPAL  RULES  OF  PLEADING  §    428 

To  the  opinion  that  this  distinctive  feature  of  the  English 
pleading  was  derived  from  the  practice  of  oral  allegation,  and 
from  that  of  applying  different  forms  of  trial  to  the  determina- 
tion of  different  kinds  of  questions,  it  may  perhaps,  be  objected, 
that  both  these  practices  anciently  prevailed,  not  only  in  England, 
but  among  the  continental  nations ;  among  whom,  nevertheless, 
the  method  of  coming  to  issue  is  now  unknown.  This  objection, 
however,  is  capable  of  a  satisfactory  answer.  On  the  continent, 
the  ancient  system  of  judicature,  of  which  these  practices  formed 
a  part,  was,  at  early  periods,  supplanted  by  the  methods  of  the 
civil  law — in  which  the  pleadings  were  written  (a) — and  there 
was  but  one  form  of  trial,  viz,  a  trial  by  the  judge  himself,  upon 
examination  of  instruments  and  witnesses  adduced  in  evidence 
before  him.  On  the  other  hand,  in  the  courts  of  Westminster,  the 
law  of  trial  still  remains  without  material  alteration ;  and  with 
respect  to  oral  pleading,  though  it  at  length  grew  out  of  fashion 
there,  it  gave  place,  not  to  allegations  formed  upon  the  principles 
of  the  imperial  practice,  but  to  supposed  transcriptions  from  the 
record;  the  effect  of  which  (as  explained  in  the  first  chapter)  has 
been  to  preserve  in  these  written  pleadings  the  style  and  method 
of  those  which  were  delivered  viva  voce  at  the  bar  of  the  court. 

But  whatever  may  be  the  origin  and  reason  of  the  method  of 
coming  to  issue,  it  is  at  least  certain  that  that  method  has  been 
substantially  practiced  in  the  English  pleading,  from  the  earliest 
period  to  which  any  of  the  now  existing  sources  of  information 
refer ;  and  from  the  work  of  Glanville  on  the  laws  of  England,  it 
may  clearly  be  shown  to  have  existed,  in  effect,  in  the  reign  of 
Henry  2.  The  term  itself,  of  "issue,"  though,  perhaps,  somewhat 
less  ancient,  yet  occurs  as  early  as  the  commencement  of  the  Year- 
Books,  viz,  in  the  first  year  of  Edward  2 ;  and  from  the  same 
period,  at  least,  if  not  an  earlier  one,  the  production  of  the  issue 
has  been  not  only  the  constant  effect,  but  the  professed  aim  and 
object  of  pleading. 

§  428.    Materiality  of  issue. 

It  was  not,  however,  the  only  object.  It  was  found,  that 
though  the  parties  should  arrive  at  an  issue,  that  is,  at  some  point 

(a)   Fortescue  de  laud.,  ch.  20. 


§  428a  SINGLENESS  OP  ISSUE  841 

affirmed  on  one  side  and  denied  on  the  other,  and  mutually  pro- 
posed and  accepted  by  them  as  the  subject  for  decision,  it  might 
yet  happen  that  the  point  was  immaterial;  that  is,  unfit  to  decide 
the  action.  This,  of  course,  rendered  the  issue  useless.  When 
it  occurred,  the  proper  remedy,  as  in  the  practice  of  the  present 
day,  was  a  repleader.  But  it  was  also  naturally  an  object  to  avoid 
its  occurrence,  and  so  to  direct  the  pleadings  as  to  secure  the  pro- 
duction not  only  of  an  issue,  but  a  material  one. 

§  42 8a.    Singleness  of  issue. 

Again,  it  was  found  to  be  in  the  nature  of  many  controversies, 
to  admit  of  more  than  one  question  fit  to  decide  the  action;  or,  in 
other  words,  actions  would  often  tend  to  more  than  one  material 
issue.  This  might  happen,  in  the  first  place,  in  causes  which  in- 
volved several  distinct  claims.  Thus,  if  an  action  be  brought, 
founded  on  two  separate  demands,  for  example,  two  bonds  exe- 
cuted by  the  defendant  in  favor  of  the  plaintiff,  the  issue  may 
arise,  as  to  one  of  them,  whether  it  be  not  discharged  by  the  sub- 
sequent release,  as  to  the  other,  whether  it  were  not  executed  un- 
der duress  of  imprisonment — which  would  make  it  avoidable  in 
law.  So,  there  may  be  more  than  one  material  issue  in  causes 
which  involve  only  a  single  claim.  Thus,  in  an  action  brought 
upon  one  bond  only,  two  issues  of  the  same  kind  may  arise — viz, 
whether  it  were  not  executed  under  duress  of  imprisonment ;  or 
whether,  at  any  rate,  it  were  not,  after  its  execution,  released  by 
the  plaintiff.  In  the  case  of  several  claims,  justice  clearly  requires 
that  if  the  cause  tend  to  several  issues  distinctly  applicable  to  each, 
these  several  issues  should  all  be  raised  and  decided;  for  other- 
wise there  would  be  no  determination  of  the  whole  matters  in  de- 
mand. But  in  case  of  a  single  claim,  the  same  consideration  does 
not  apply ;  for  the  decision  of  any  one  of  the  material  issues  that 
may  arise  upon  it,  will  be  sufficient  to  dispose  of  the  entire  claim. 
Thus,  in  the  first  example  given,  the  finding  that  one  bond  was  re- 
leased, or  that  it  was  not  released,  would  leave  the  demand  on  the 
other  wholly  untouched.  On  the  other  hand,  in  the  second  ex- 
ample, if  the  party  be  put  to  his  election,  either  to  rely  on  the  fact 
of  the  execution  under  duress,  or  on  the  release,  either  of  the 
questions  which  he  so  elects  will  lead  to  an  issue  sufficient  to  de- 


842  PRINCIPAL  RULES  OF  PLEADING  §    429 

cide  the  whole  claim.  While  several  issues,  therefore,  must  of 
necessity  be  allowed  in  respect  of  several  subjects  of  suit,  the  al- 
lowance of  more  than  one  issue  in  respect  of  each  subject  of  suit, 
is,  in  some  degree,  a  question  of  expediency.  Those  who  founded 
the  system  of  pleading  took  the  course  of  not  allowing  more  than 
one;  and  the  motives  which  led  to  this  course  are  sufficiently  ob- 
vious. For  reasons  assigned  in  another  place,  it  was  of  consid- 
erable importance  to  the  judges,  in  those  remote  times,  when  the 
contention  was  conducted  orally,  to  simplify  and  abbreviate  the 
process  as  much  as  possible;  and  it  was  in  this  view,  no  doubt, 
that  it  was  found  expedient  to  establish  the  principle  of  confining 
the  pleaders  to  a  single  issue  in  respect  of  each  single  claim,  al- 
lowing, at  the  same  time,  from  necessity,  of  several  issues,  when 
each  related  to  a  distinct  subject  of  demand.  But  whatever  the 
reason,  it  is  clear  that,  in  point  of  fact,  this  principle  was  very 
early  recognized  in  pleading,  and  that  the  issue  was  required  not 
only  to  be  material,  but  single. 

§  429.    Certainty  of  issue. 

There  was  still  another  quality  essential  to  the  issue — that  of 
certainty.  This  word  is  technically  used  in  pleading,  in  the  two 
different  senses  of  distinctiveness  and  particularity.  It  is  here  em- 
ployed in  the  latter  sense  only ;  and  when  it  is  said  that  the  issue 
must  be  certain,  the  meaning  is  that  it  must  be  particular  or 
specific,  as  opposed  to  undue  generality. 

One  of  the  causes,  which  have  been  above  assigned  for  the 
practice  of  coming  to  issue,  made  it  also  necessary  to  come  to  is- 
sue with  some  degree  of  certainty.  The  variety  of  modes  of  deci- 
sion required  that  the  issue  should  be  sufficiently  certain  to  show 
whether  the  point  in  controversy  consisted  of  law  or  fact;  and  if 
the  latter,  so  far  to  show  its  nature  as  to  ascertain  by  what  form 
of  trial  it  ought  to  be  decided.  But  a  certainty  still  greater  than 
this  was  required  by  a  cause  of  another  kind ;  viz,  the  nature  of 
the  original  constitution  of  the  trial  by  jury.  It  is  a  matter  clear 
beyond  dispute  (but  one  that  has  perhaps  been  too  little  noticed 
in  works  that  treat  of  the  origin  of  our  laws)  that  the  jury  an- 
ciently consisted  of  persons  who  were  witnesses  to  the  facts,  or 
at  least  in  some  measure  personally  cognizant  of  them ;  and  who, 
consequently,  in  their  verdict,  gave  not  (as  now)  the  conclusion 


§   429  CERTAINTY  OF  ISSUE  843 

of  their  judgment,  upon  facts  proved  before  them  in  the  cause; 
but  their  testimony  as  to  facts  which  they  had  antecedently  known. 
Accordingly  the  venire  facias,  issued  to  summon  a  jury  in  those 
days,  did  not  (as  at  present)  direct  the  jurors  to  be  summoned 
from  the  body  of  the  county,  but  from  the  immediate  neighbor- 
hood where  the  facts  occurred,  and  from  among  those  persons 
who  best  know  the  truth  of  the  matter.  And  the  only  means  that 
the  sheriff  himself  had  of  knowing  what  was  the  matter  in  con- 
troversy, so  as  to  be  in  a  condition  to  obey  the  writ,  appears  to 
have  been  the  venire  facias  itself ;  which  then  stated  the  nature  of 
the  issue  instead  of  being  confined  (as  now)  to  a  short  statement 
of  the  form  of  the  action.  (&)  In  this  state  of  things,  it  was  evi- 
dently necessary  that  the  issue  should  be  sufficiently  certain  to 
show  specifically  the  nature  of  the  question  of  fact  to  be  tried. 
Unless  it  showed  (for  example)  at  what  place  the  alleged  matter 
was  said  to  have  occurred,  it  would  not  appear  into  what  county 
the  venire  should  be  sent,  nor  from  what  neighborhood  the  jury 
were  to  be  selected.  So,  if  it  did  not  specify  the  time  and  other 
particulars  of  the  alleged  transaction,  the  sheriff  would  have  no 
sufficient  guide  for  summoning,  in  obedience  to  the  venire,  per- 
sons able  of  their  own  knowledge  to  testify  upon  that  matter. 
For  all  these  reasons,  and  probably  for  others  also,  connected  with 
the  general  objects  of  precision  and  clearness, (c)  it  was  consid- 
ered as  one  of  the  essential  qualities  of  the  issue  that  it  should  be 
certain,  and  the  certainty  was  generally  to  be  of  the  degree  indi- 
cated by  the  preceding  considerations.  In  modern  times,  as  the 
jurors  have  ceased  to  be  of  the  nature  of  witnesses,  and  are  taken 
generally  from  the  body  of  the  county,  it  is  no  longer  necessary  to 
shape  the  issue  for  the  information  of  the  summoning  officer,  and, 
accordingly  the  venire  facias  no  longer  even  sets  the  issue  forth. 
But  as  the  parties  now  prove  their  facts  by  the  adduction  of  evi- 
dence before  the  jury,  and  have  consequently  to  provide  them- 
selves with  the  proper  documents  and  witnesses,  it  is  as  essential 
that  they  should  each  be  Apprised  of  the  specific  nature  of  the 
question  to  be  tried,  as  it  formerly  was  that  the  sheriff  should  be 
so  instructed ;  and  the  particularity  which  was  once  required  for 

(b)  Vide  Bract.,  pp.  309b,  310a,  etc. 

(c)  Bracton,  431a. 


844  PRINCIPAL    RULES    OF    PLEADING  §    429 

the  information  of  that  officer,  now  serves  for  the  guidance  of  the 
parties  themselves  in  preparing  their  proof s.(rf) 

On  the  whole,  therefore,  the  author  conceives  the  chief  objects 
of  pleading  to  be  these — that  the  parties  be  brought  to  issue,  and 
that  the  issue  so  produced  be  material,  single,  and  certain,  in  its 
quality.  In  addition  to  these,  however,  the  system  of  pleading  has 
always  pursued  those  general  objects  also,  which  every  enlightened 
plan  of  judicature  professes  to  regard — the  avoidance  of  ob- 
scurity, and  confusion,  of  prolixity  and  delay.  Accordingly,  the 
whole  science  of  pleading,  when  carefully  analyzed,  will  be 
found  to  reduce  itself  to  certain  principal  or  primary  rules,  the 
most  of  which  tend  to  one  or  other  of  the  objects  above  enumer- 
ated, and  were  apparently  devised  in  reference  to  those  objects; 
while  the  remainder  are  of  an  anomalous  description,  and  appear 
to  belong  to  other  miscellaneous  principles.  It  is  proposed  in  the 
following  chapters,  to  collect  and  investigate  these  principal 
rules,  and  to  subject  them  to  a  distribution,  conformable  to  the 
distinctions  that  thus  exist  between  them  in  point  of  origin  and 
object.  The  following  chapters  will  therefore  treat : 

I.  Of  rules  which  tend  simply  to  the  production  of  an  issue. 
II.  Of  rules  which  tend  to  secure  the  materiality  of  an  issue. 

III.  Of  rules  which  tend  to  produce  singleness  or  unity  in  the 
issue. 

IV.  Of  rules  which  tend  to  produce  certainty  or  particularity 
in  the  issue. 

V.  Of  rules  which  tend  to  prevent  obscurity  and  confusion  in 
pleading. 

VI.  Of  rules  which  tend  to  prevent  prolixity  and  delay  in  plead- 
ing. 
VII.  Of  certain  miscellaneous  rules. 

The  discussion  of  these  principal  rules  will  incidentally  involve 
the  consideration  of  many  other  rules  and  principles,  of  a  kind 
subordinate  to  the  first,  but  extensive,  nevertheless,  and  impor- 
tant in  their  application ;  and  thus  will  be  laid  before  the  reader 
an  entire,  though  general,  view  of  the  whole  system  of  pleading, 
and  of  the  relations  which  connect  its  different  parts  with  each 
other. 

(<T)  As  to  this  latter  or  modern  reason  for  certainty,  see  Collett 
v.  Lord  Keith,  2  East.  270;  J'Anson  v.  Stuart,  1  T.  R.  743;  Holmes 
v.  Catesby,  1  Taunt.  543. 


CHAPTER  XLIX. 
RULES  WHICH  TEND  SIMPLY  TO  THE  PRODUCTION  OF  AN  ISSUE. 

§  430.   Introductory. 

RULE  I. 
\ 

§  431.  After  the  declaration,  the  parties  must  at  each  stage  demur,  or 
plead  by  way  of  traverse,  or  by  way  of  confession  and  avoid- 
ance. 

§  432.  Pleadings. 

§  433.  The  general  issue. 

§  434.  Scope  of  general  issue  in  assumpsit. 

§  435.  Scope  of  general  issue  in  trespass  on  the  case. 

§  436.  Special  pleas. 

§  437.  Traverse   de   injuria. 

§  438.  Special  traverse. 

§  439.  Use  and  object  of  special  traverse. 

§  440.  Essentials  of  special  traverse. 

§  441.  Traverses  in  general. 

§  442.  Traverse  on  matter  of  law. 

§  443.  Matter  not  alleged  must  not  be  traversed. 

§  444.  Traversing  the  making  of  a  deed. 

§  445.  Pleadings   in   confession  and  avoidance. 

§  446.  Express  color. 

§  447.  The  nature  and  properties  of  pleadings  in  general — 
without  reference  to  their  quality,  as  being  by  way 
of  traverse,  or  confession  and  avoidance. 

§  448.  Exceptions  to  the  rule. 

RULE  ii. 
§  449.   Upon  a  traverse  issue  must  be  tendered. 

RULE   III. 

• 
§  450.  Issue,  when  ti'ell  tendered,  must  be  accepted. 

§430.    Introductory. 

Upon  examination  of  the  process  or  system  of  allegation  by 
which  the  parties  are  brought  to  issue,  as  that  process  is  described 
in  the  first  chapter,  it  will  be  found  to  resolve  itself  into  the  fol- 
lowing fundamental  rules  or  principles :  First,  that  after  the  dec- 
laration, the  parties  must  at.  each  stage  demur,  or  plead  by  way 
of  traverse,  or  by  zvay  of  confession  and  avoidance;  second,  that 


846  PRODUCTION    OF  ISSUE  §    431 

upon  a  traverse,  issue  must  be  tendered; (a)  third,  that  the  issue 
when  well  tendered,  must,  be  accepted.  Either  by  virtue  of  the 
first  rule,  a  demurrer  takes  place,  which  is  a  tender  of  an  issue  in 
law;  or,  by  the  joint  operation  of  the  first  two,  the  tender  of  an 
issue  in  fact,;  and  then,  by  the  last  of  these  rules,  the  issue  so  ten- 
dered, whether  in  fact  or  in  law,  is  accepted,  and  becomes  finally 
complete.  It  is  by  these  rules,  therefore,  that  the  production  of 
an  issue  is  effected;  and  these  will  consequently  form  the  subject 
of  the  following  section. 

RULE  I. 

§  431.  After  the  declaration,  the  parties  must  at  each 
stage  demur,  or  plead  by  way  of  traverse,  or  by  way 
of  confession  and  avoidance. 

This  rule  has  two  branches : 

1.  The  party  must  demur,  or  plead.    One   or  other  of   these 
courses  he  is  bound  to  take    (while  he  means  to  maintain  his 
action  or  defense)  until  issue  be  tendered.     If  he  does  neither, 
but  confesses  the  right  of  the  adverse  party,  or  says  nothing,  the 
court  immediately  gives  judgment  for  his  adversary;  in  the  for- 
mer case,  as  by  confession — in  the  latter,  by  non  pros,  or  nil  dicit. 

2.  If  the  party  pleads,  it  must  either  be  by  way  of  traverse,  or 
of  confession  and  avoidance.     If  his  pleading  amount  to  neither 
of   these   modes   of    answer,    it   is    open   to    demurrer    on   that 
ground,  (b) 

Such  is  the  effect  of  this  rule,  generally  and  briefly  considered. 
But  for  its  complete  illustration,  it  will  be  necessary  to  enter 
much  more  deeply  into  the  subject,  and  to  consider  at  large  the 
doctrines  that  relate  both  to  demurrers  and  to  pleadings. 

Of  demurrer. 

***** 

[The  subject  of  demurrer  has  been  fully  treated  in  chapter 
XXV,  and  the  discussion  need  not  be  here  repeated.] 

(a)  With  respect  to  demurrer,  it  will  be  remembered  that  it  neces- 
sarily implies  a  tender  of  issue. 

(&)   Reg.  Plac.  59;  1  Tidd,  582;  21  Hen.  6,  12;  5  Hen.  7,  13,  a,  14,  a,  b. 


§    432  PLEADINGS  847 

§  432.    Pleadings. 

Having  now  taken  some  view  of  the  doctrine  of  demurrers,  the 
next  subject  for  consideration  will  be  that  of  pleading. 

Tuder  this  head,  it  is  proposed  to  examine:  1.  The  nature 
and  properties  of  traverses.  2.  The  nature  and  properties  of 
pleadings  in  confession  and  avoidance.  3.  The  nature  and  prop- 
erties of  pleadings  in  general,  without  reference  to  their  quality, 
as  being  by  way  of  traverse,  or  confession  and  avoidance. 

1.  Of  the  nature  and  properties  of  traverses. 

Of  traverses  there  are  various  kinds.  The  most  ordinary  kind 
is  that  which  may  be  called  a  common  traverse.  It  consists  of  a 
tender  of  issue;  that  is,  of  a  denial,  accompanied  by  a  formal  of- 
fer of  the  point  denied,  for  decision;  and  the  denial  that  it  makes, 
is  by  way  of  express  contradiction,  in  terms  of  the  allegation 
traversed.  Of  this  kind  the  following  is  an  example: 

In  covenant,  on  Indenture  of  Lease,  for  not  repairing. 

And  the  said  defendant,  by  his  attorney,  comes  and  says  that 
the  windows  of  the  said  messuage  and  tenement  were  not,  in  any 
part  thereof  ruinous,  in  decay  and  out  of  repair  in  manner  and 
form  as  the  said  plaintiff  hath  above  thereof  complained  against 
him,  the  said  defendant.  And  of  this  he  puts  himself  upon  the 
country. 

W.  W.  A.,  p.  d. 

This  form  of  traverse  is  generally  expressed  in  the  negative. 
This,  however,  is  not  invariably  the  case  with  a  common  trav- 
erse, for  if  opposed  to  a  preceding  negative  allegation,  it  will,  of 
course,  be  in  the  affirmative,  as  in  the  following  example : 

PLEA. 

Of  the  Statute  of  Limitations,  in  Assumpsit. 

And  the  said  C.  D.,  by ,  his  attorney,  comes  and 

defends  the  wrong  and  injury,  when,  etc.,  and  says  that  the  said 
A.  B.  ought  not  to  have  or  maintain  his  aforesaid  action  against 
him ;  because  he  says  that  he,  the  said  C.  D.,  did  not  at  any  time 
v.'ithin  six  years  next  before  the  commencement  of  this  suit,  un- 
dertake or  promise  in  manner  and  form  as  the  said  A.  B.  hath 
above  complained.  And  this  the  said  C.  D.  is  ready  to  verify. 
\\herefore  he  prays  judgment  if  the  said  A.  B.  ought  to  have  or 
maintain  his  aforesaid  action  against  him,  etc. 


848  PRODUCTION    OF    ISSUE  §    433 

REPLICATION. 

And  the  said  A.  B.  says  that,  by  reason  of  anything  in  the  said 
plea  alleged,  he  ought  not  to  be  barred  from  having  and  main- 
taining his  aforesaid  action  against  the  said  C.  D. ;  because  he 
says  that  the  said  C.  D.  did,  within  six  years  next  before  the 
commencement  of  this  suit,  undertake  and  promise  in  manner  and 
form  as  he,  the  said  A.  B.,  hath  above  complained.  And  this  he 
prays  may  be  inquired  of  by  the  country. 

§  433.    The  general  issue. 

Besides  this,  the  common  kind,  there  is  a  class  of  traverses, 
which  requires  particular  notice.  In  most  of  the  usual  actions, 
there  is  a  fixed  and  appropriate  form  of  plea  for  traversing  the 
declaration,  in  cases  where  the  defendant  means  to  deny  its  whole 
allegations,  or  the  principal  fact  on  which  it  is  founded,  (c)  This 
form  of  plea  or  traverse  has  been  usually  denominated  the  gen- 
eral issue  in  that  action :  and  it  appears  to  have  been  so  called,  be- 
cause the  issue  that  it  tenders,  involving  the  whole  declaration,  or 
the  principal  part  of  it,  is  of  a  more  general  and  comprehensive 
kind  than  that  usually  tendered  by  a  common  traverse.  *  *  * 
From  the  examples  of  it  that  will  be  given  presently,  it  will  be 
found,  that,  in  point  of  form,  it  sometimes  differs  from  a  com- 
mon traverse;  for  though,  like  that,  it  tenders  issue,  yet,  in  sev- 
eral instances,  it  does  not  contradict  in  terms  of  the  allegation 
traversed,  but  in  a  more  general  form  of  expression. (d) 

The  first  of  these  traverses  that  shall  be  mentioned  is  called  the 
plea  of  non  est  factum.  *  *  *  It  occurs  in  debt  on  bond  or 
other  specialty,  and  also  in  covenant,  and  is  as  follows : 

"And  the  said  defendant,  by  -  -  his  attorney,  says  that  the 
said  supposed  writing  obligatory  (or  'indenture,'  or  'articles  of 
agreement,'  according  to  the  subject  of  the  action,}  is  not  his 
deed.  And  of  this  he  puts  himself  upon  the  country." 

Another  of  them  is  the  plea  of  never  indebted,  usually  called 
"nil  debet."  It  occurs  in  actions  of  debt  on  simple  contract,  and 
its  form  is  as  follows : 

"And  the  said  defendant,  by his  attorney,  says,  that  he 

O)   Reg.  Plac.  57;  Doct.  &  Stud.  272. 

(d)   See  the  general  issues  of  non  est  factum,  and  not  guilty,  infra. 


§  433  THE;  GENERAL  ISSUE  849 

never  was  indebted  in  manner  and  form  as  in  the  declaration  al- 
leged. And  of  this  he  puts  himself  upon  the  country." 

[Another  general  issue  in  debt  occurs  when  an  action  of  debt 
is  brought  upon  a  record,  and  is  called  the  plea  of  nul  tiel  record. 
It  is  as  follows : 

"And  the  said  defendant,  by  his  attorney,  comes  and  says  that 
there  is  not  any  record  of  the  said  supposed  recognizance  (or  if 
in  debt  upon  a  judgment,  say,  of  the  said  supposed  recovery}  in 

the  declaration  mentioned,  remaining  in  the  said court  of 

—  County,  in  manner  and  form  as  the  said  plaintiff  hath 
above  in  his  said  declaration  alleged.  And  this  the  said  defend- 
ant is  ready  to  verify."1  (See  4  Min.  Ins.,  p.  1483.)] 

Another  of  these  traverses  is  called  the  plea  of  non  detinet.  It 
occurs  in  detinue,  and  is  as  follows : 

"And  the  said  defendant,  by  his  attorney,  says,  that 

he  does  not  detain  the  said  goods  and  chattels  (or,  'deeds  and 
writing,'  according  to  the  subject  of  the  action,)  in  the  said  dec- 
laration specified  or  any  part  thereof,  in  manner  and  form  as 
the  said  plaintiff  hath  above  complained.  And  of  this  the  said 
defendant  puts  himself  upon  the  country." 

Another  of  them  is  called  the  plea  of  not  guilty.  It  occurs  in 
trespass  and  trespass  on  the  case,  ex  delicto,  and  is  as  follows : 

"And  the  said  defendant,  by his  attorney  says,  that  he  is 

not  guilty  of  the  said  trespasses  (or,  in  trespass  on  the  case,  'the 
premises,')  above  laid  to  his  charge,  or  any  part  thereof,  in  man- 
ner and  form  as  the  said  plaintiff  hath  above  complained.  And 
of  this  the  said  defendant  puts  himself  upon  the  country." 

k  Another  of  these  is  called  the  plea  of  non  assumpsit.     It  oc- 
urs  in  the  action  of  assumpsit,  and  is  as  follows : 
"And  the  said  defendant,  by  -         -  his  attorney,  says,  that  he 
id  not  undertake  or  promise  in  manner  and  form  as  the  said 
plaintiff  hath  above  complained.    And  of  this  the  said  defendant 
puts  himself  upon  the  country." 

1.  Unlike  the  other  general  issues,  this  one  concludes  with  a  veri- 
fication. The  reason  is  that  the  issue  is  to  be  tried  by  the  court  upon 
a  simple  inspection  of  the  record,  and  hence  it  should  not  tender  an 
issue  to  be  tried  by  a  jury. 

—54 


850  PRODUCTION   OF  ISSUED  §    433 

There  belongs  also  to  the  same  class,  the  plea  of  non  cepit.  It 
occurs  in  the  action  of  replevin,  and  is  as  follows : 

"And  the  said  defendant,  by his  attorney,  says,  that  he 

did  not  take  the  said  cattle  (or  'goods  and  chattels'  according  to 
the  subject  of  the  action,}  in  the  said  declaration  mentioned,  or 
any  of  them,  in  manner  and  form  as  the  said  plaintiff  hath  above 
complained.  And  of  this  the  said  defendant  puts  himself  upon 
the  country." 

According  to  the  principle  of  these  pleas  it  will  be  observed, 
that  (like  all  other  traverses)  they  purport  to  be  a  mere  denial  of 
something  adversely  alleged.  But  an  allowed  relaxation  in  the 
modern  practice  has  given  to  some  of  them  an  application  more 
extensive  than  belongs  to  them  in  principle;  and  the  defendant 
has,  under  such  issues  been  permitted  to  give  in  evidence  any 
matter  of  defence  whatever  (subject  to  some  few  exceptions) 
which  tends  to  deny  his  liability  to  the  action.2 

*  #  #  *  * 

A  very  important  effect  attends  the  adoption  of  the  general 
issue,  viz,  that  by  tendering  the  issue  on  the  declaration,  and  thus 
closing  the  process  of  the  pleading,  at  so  early  a  stage,  it  throws 
out  of  use,  wherever  it  occurs,  a  great  many  rules  of  pleading,  ap- 
plying exclusively,  to  the  remoter  allegations.  For  it  is  evident 
that,  when  the  issue  is  thus  tendered  in  the  plea,  the  whole  doc- 
trine relating  to  pleadings  in  confession  and  avoidance,  replica- 
tions, rejoinders,  etc.,  is  superseded.  At  the  same  time,  the  gen- 
eral issue  is  of  very  frequent  occurrence  in  pleading;  and  it  has, 
therefore,  on  the  whole,  the  effect  of  narrowing,  very  considera- 
bly, the  application  of  the  greater  and  more  subtle  part  of  the 
science. 

The  important  character  of  this  plea,  makes  it  material  to  ex- 
plain distinctly  in  what  cases  it  may  and  ought  to  be  used ;  and  this 
is  the  more  necessary,  because  an  allowed  relaxation  in  the 
modern  practice  has,  in  some  actions,  given  it  an  application  more 
extensive  than  belongs  to  it  in  principle.  To  obtain  a  clear  view 
of  this  subject,  we  must  examine  the  language  of  the  different 

2.  The  historical  development  of  the  scope  of  these  general  issues 
is  given  in  the  next  two  succeeding  sections,  taken  from  an  earlier 
edition  of  the  author. 


§    434  SCOPE   OF   GENERAL   ISSUE  IN   ASSUMPSIT  851 

general   issues,   in   reference  to   the  declarations   which  they  re- 
spectively traverse. 

§  434.    Scope  of  general  issue  in  assumpsit. 

First,  with  respect  to  .that  in  Assumpsit.  The  declaration  in 
this  action  states  that  the  defendant,  upon  a  certain  consideration 
therein  set  forth,  made  a  certain  promise  to  the  plaintiff.  The  gen- 
eral issue,  in  this  action,  states  that  the  defendant  "did  not  prom- 
ise and  undertake  in  manner  and  form,"  etc.  This,  at  first  sight, 
would  appear  to  put  in  issue,  merely  the  fact  of  his  having  made 
a  promise  such  as  alleged.  A  much  wider  effect,  however,  belongs 
in  practice,  to  this  plea;  and  was  originally  allowed  (as  it  would 
appear),  in  reference  to  the  following  distinction.  It  has  been 
already  stated,  in  a  former  part  of  the  work,  that  the  law  will  al- 
ways imply  a  promise,  in  consideration  of  an  existing  debt  or  lia- 
bility; and  that  the  action  of  assumpsit  may  be  consequently 
founded  on  a  promise  either  express  or  implied.  When  the  prom- 
ise relied  upon  was  of  the  latter  kind,  and  the  defendant  pleaded 
the  general  issue,  the  plaintiff's  mode  of  maintaining  the  affirm- 
ative of  this  issue,  on  the  trial,  was,  of  course,  by  proving  that 
debt  or  liability  on  which  the  implied  promise  would  arise ; — and 
in  such  case,  it  was  evidently  reasonable  that  the  defendant  also 
should,  under  his  plea  denying  the  promise,  be  at  liberty  to  show 
any  circumstance  by  which  the  debt  or  liability  was  disproved; 
such,  for  example,  as  performance,  or  a  release.  Accordingly,  in 
actions  on  implied  assumpsits,  this  effect  was,  on  the  principle  here 
mentioned,  allowed  to  the  general  issue.  But  it  was  at  first  al- 
lowed, in  the  case  of  implied  assumpsits  only;  and  where  an  ex- 
press promise  was  proved,  the  defendant  in  conformity  with  the 
language  and  strict  principle  of  his  plea,  was  permitted,  under  the 
general  issue,  only  to  contest  the  fact  of  the  promise;  or,  at  most, 
to  show  that,  on  the  ground  of  some  illegality,  it  was  a  promise 
void  in  law.  (Fits  v.  Freestone,  1  Mod.  310;  Abbot  v.  Chapman, 
2  Lev.  81;Vin.  Ab.  Evidence  (Z.  a.) ;  1  Chitty,  471,  1st  Ed. 
This  practice,  however,  was  by  relaxation  gradually  applied  to 
those  on  express  promises  also ;  and  at  length,  in  all  actions  of  as- 
sumpsit, without  distinction,  the  defendant  was,  under  the  general 


852  PRODUCTION    OF    ISSUE  §    435 

issue,  permitted  not  only  to  contend  that  no  promise  was  made, 
or  to  show  facts  impeaching  the  validity  of  the  promise,  but  (with 
some  few  exceptions)  to  prove  any  matter  of  defence  whatever, 
which  tends  to  deny  his  debt  or  liability;  for  example,  a  release 
or  performance.  And  such  is  the  present  state  of  the  practice. 

This  is  a  great  deviation  from  principle ;  for  it  will  be  ob- 
served, that  many  of  these  matters  of  defence  are  such  (in  the 
case  of  express  promise)  as  ought  regularly  to  be  pleaded  in  con- 
fession and  avoidance.  Thus,  if  the  defendant  be  charged  with  an 
express  promise,  and  his  case  be,  that,  after  making  such  promise, 
it  was  released  or  performed,  this  plainly  confesses  and  avoids  the 
declaration.  To  allow  the  defendant,  therefore,  to  give  this  in 
evidence  under  the  general  issue,  which  is  a  plea  by  way  of  trav- 
erse, is  to  lose  sight  of  the  distinction  between  the  two  kinds  of 
pleading.  And  even  where  the  matters  of  defence  thus  admitted 
in  evidence,  are  not  such  as  would  have  been  pleadable  by  way  of 
confession  and  avoidance,  but  are  in  the  nature  of  a  traverse  of 
the  declaration,  yet  they  are  almost  always  inconsistent  with  the 
form  and  language  of  the  general  issue  in  this  action;  which  (as 
has  been  seen)  consists  of  a  denial  of  the  promise  only,  and  pur- 
ports to  traverse  no  other  part  of  the  declaration.  Thus,  in  an  ac- 
tion which  has  become,  of  all  others,  the  most  frequent  and  general 
in  its  application,  the  science  of  pleading  has  been,  in  a  great  meas- 
ure, superseded,  by  an  innovation  of  practice,  which  enables  the 
parties  to  come  to  issue  upon  the  plea  (the  second  step  in  the  se- 
ries of  allegations)  in  a  great  variety  of  cases,  which  would  for- 
merly have  led  to  much  remoter  or  more  specific  issues.  This  im- 
portant inroad  on  the  ancient  dominion  of  pleading,  has  been 
effected  for  more  than  a  century  past ;  and  was  probably  first  en- 
couraged by  the  judges,  in  consequence  of  -a  prevalent  opinion, 
that  the  rules  of  this  science  were  somewhat  more  strict  and  subtle 
than  is  consistent  with  the  objects  of  justice;  and  that,  as  the  gen- 
eral issue  tended  to  abbreviate  its  process,  and  proportionably  to 
emancipate  the  suitors  from  its  restrictions,  it  was  desirable  to 
extend  as  much  as  possible,  the  use  and  application  of  that  plea. 

§  435.    Scope  of  general  issue  in  trespass  on  the  case. 

Next  in  order,  is  the  general  issue,  which  belongs  to  the  action 
of  Trespass  on  the  case  in  general.  The  declaration  in  this  ac- 


§    435     SCOPE  OF  GENERAL  ISSUE  IN  TRESPASS  ON  THE  CASE  853 

tion,  sets  forth  specifically  the  circumstances  which  form  the  sub- 
ject of  complaint.  The  general  issue,  not  guilty,  is  a  mere  trav- 
erse, or  denial  of  the  facts  so  alleged ;  and  therefore,  on  princi- 
ple, should  be  applied  only  to  cases  in  which  the  defence  rests  on 
such  denial.  But  here  a  relaxation  has  taken  place,  similar  to  that 
which  prevails  in  assumpsit;  for,  under  the  plea  now  in  question, 
a  defendant  is  permitted,  not  only  to  contest  the  truth  of  the  decla- 
ration, but  (with  certain  exceptions)  to  prove  any  matter  of  de- 
fence that  tends  to  show  that  the  plaintiff  has  no  right  of  action, 
though  such  matters  be  in  confession  and  avoidance  of  the  dec- 
laration; as,  for  example,  a  release  given,  or  satisfaction  made. 
This  latitude  was  no  doubt  originally  allowed,  in  the  same  view 
that  prompted  the  encouragement  of  the  general  issue  in  assump- 
sit. It  is  not,  however,  easy  to  conceive,  by  what  artifice  of 
reasoning,  the  relaxation  was,  in  this  case,  held  to  be  recon- 
cilable with  the  principles  of  pleading,  to  which  it  stands  in 
apparent  variance :  and  perhaps  the  truth  is,  that  the  practice 
in  question,  was  first  applied  to  the  general  issue  in  trespass 
on  the  case  in  general,  without  regard  to  any  principle,  beyond 
that  of  a  forced  analogy  to  the  similar  practice  in  trespass  on 
the  case  in  assumpsit.  (See,  however,  Lord  Mansfield's  ex- 
planation of  the  reason  for  allowing  this  practice  in  trespass  on 
the  case.  Bird  v.  Randall,  3  Burr.  1353;  1  Chitty,  486,  1st  Ed.) 
"Thus,  in  assumpsit  [debt  on  simple  contract],  and  trespass  on 
the  case  in  general,  the  defendant  is  allowed,  under  the  general 
issue,  to  give  in  evidence  matters  which  do  not  fall  within  the 
strict  principle  of  that  plea,  and,  among  these,  matters  in  confes- 
sion and  avoidance.  It  is  to  be  observed,  however,  with  respect 
to  matters  of  this  latter  description,  that,  though  allowed,  he  is 
in  no  case  obliged  to  take  that  course,  but  may  still  bring  for- 
ward, by  way  of  special  plea  in  confession  and  avoidance,  all 
such  allegations  as  properly  fall  within  the  principle  of  such  plead- 
ings, that  is,  all  which  confess  what  is  adversely  alleged,  but  re- 
pel or  obviate  its  legal  effect.  Thus  the  defendant  may  in  as- 
sumpsit and  other  actions  to  trespass  on  the  case,  plead  a  release, 
though  it  is  also  competent  to  him  to  rely  upon  it  in  evidence  un- 
der the  general  issue.  As  this  course  is  allowable,  so  there  are 
reasons  of  convenience  which  sometimes  dictate  its  adoption ;  but 


854  PRODUCTION  OF  ISSUE  §    436 

the  general  issue,  where  capable  of  being  applied,  is  much  the  more 
usual  form  of  plea,  and  that  which,  from  its  generality,  is  com- 
monly the  most  advantageous  to  the  defendant." 

[What  is  provable  under  the  general  issues  in  different  ac- 
tions in  Virginia  has  already  been  pointed  out  in  the  preceding 
chapters  treating  such  actions.  It  may  be  proper  to  add  that 
such  defences  as  are  allowed  only  by  virtue  of  §  3299  of  the 
Code  cannot  be  set  up  under  the  general  issues  of  nil  debit  and 
non  assumpsit.  It  has  also  been  held  recently  in  Virginia  that 
in  a  proceeding  by  motion  on  a  contract  under  §  3211  of  the 
Code,  the  defendant  may  rely  upon  a  set-off  to  the  plaintiff's 
demand,  although  his  only  plea  was  non  assumpsit,  and  no  list 
or  plea  of  set-offs  or  payment  was  filed;  that  the  plaintiff's 
remedy  was  to  call  for  a  statement  of  the  grounds  of  defence 
under  §  3249.  It  appeared,  however,  that  the  plaintiff  was  ap- 
prised of  the  defence  at  an  early  stage  of  the  proceedings.]4 

§  436.    Special  pleas. 

On  the  subject  of  general  issues,  it  remains  only  to  remark, 
that  other  pleas  are  ordinarily  distinguished  from  them  by  the 
appellation  of  special  pleas;  and  when  resort  is  had  to  the  latter 
kind,  the  party  is  said  to  plead  specially,  in  opposition  to  plead- 
ing the  general  issue. (e~)  So  the  issues  produced  upon  special 
pleas,  as  being  usually  more  specific  and  particular  than  those 
of  not  guilty,  etc.,  are  sometimes  described  in  the  book  as 
special  issues,  by  way  of  distinction  from  the  others,  which 
were  called  general  issues ;(/)  the  latter  term  having  been  after- 
wards applied,  not  only  to  the  issues  themselves,  but  to  the  pleas 
which  tendered  and  produced  them. 

(e)  These  terms,  it  may  be  remarked,  have  given  rise  to  the  popu- 
lar denomination  of  the  whole  science  to  which  this  work  relates, 
which,  though  properly  described  as  that  of  pleading,  is  generally 
known  by  the  name  of  special  pleading. 

(/)   Co.  Litt.  126a;  Heath's  Maxims,  53;  Com.  Dig.,  Pleader  (R.  2). 


4.  Whitley  v.  Booker  Brick  Co.,  113  Va.  434,  74  S.   E.  160. 


§    437  TRAVERSE  DE  INJURIA  855 

§  437.    Traverse  de  injuria. 

There  is  another  species  of  traverse,  which  varies  from  the 
common  form,  and  which  though  confined  to  particular  actions, 
and  to  a  particular  stage  of  pleading,  is  of  frequent  occurrence. 
It  is  the  traverse  de  injuria  sua  propria  absque  tali  causa;  or 
(as  it  is  more  compendiously  called)  the  traverse  de  injuria. 
It  always  tenders  issue;  but  on  the  other  hand,  differs  (like  many 
of  the  general  issues)  from  the  common  form  of  a  traverse,  by 
denying  in  general  and  summary  terms,  and  not  in  the  words  of 
the  allegation  traversed.  The  following  is  an  example : 

PLEA. 

Of  son  assault  demesne. 
In  Trespass  for  Assault  and  Battery. 

And  for  a  further  plea  in  this  behalf,  the  defendant  says,  that 
the  said  plaintiff,  just  before  the  said  time,  when,  etc.,  to  wit,  on 
the  day  and  year  aforesaid,  with  force  and  arms,  made  an  assault 
upon  him,  the  said  defendant,  and  would  then  and  there  have 
beaten  and  ill  treated  him,  the  said  defendant,  if  he  had  not  im- 
mediately defended  himself  against  the  said  plaintiff,  wherefore 
the  said  defendant  did  then  and  there  defend  himself  against  the 
said  plaintiff,  as  he  lawfully  might,  for  the  cause  aforesaid;  and 
in  so  doing  did  necessarily  and  unavoidably  a  little  beat,  wound, 
and  ill  treat  the  said  plaintiff;  doing  no  unnecessary  damage  to 
the  said  plaintiff  on  the  occasion  aforesaid.  And  so  the  said  de- 
fendant saith,  that  if  any  hurt  or  damage  then  and  there 
happened  to  the  said  plaintiff,  the  same  was  occasioned  by  the  said 
assault  so  made  by  the  said  plaintiff  on  him  the  said  defendant, 
and  in  the  necessary  defence  of  himself  the  said  defendant  against 
the  said  plaintiff ;  which  are  the  supposed  trespasses  in  the  intro- 
ductory part  of  this  plea  mentioned,  and  whereof  the  said  plain- 
tiff hath  above  complained.  And  this  the  said  defendant  is  ready 
to  verify. 

REPLICATION. 

And  as  to  the  said  plea  by  the  said  defendant  last  above  pleaded 
in  bar  to  the  said  several  trespasses  in  the  introductory  part  of 
that  plea  mentioned,  the  said  plaintiff  says,  that  the  said  defend- 
ant at  the  said  time  when,  etc.,  of  his  own  wrong,  and  without  the 
cause  in  his  said  last-mentioned  plea  alleged,  committed  the  said 
several  trespasses  in  the  introductory  part  of  that  plea  mentioned, 
in  manner  and  form  as  the  said  plaintiff  hath  above  complained ; 
and  this  he  prays  may  be  inquired  of  by  the  country,  (g) 

(g)   2  Chitty,  523,  642. 


856  PRODUCTION  OF  ISSUE  §    438 

This  species  of  traverse  occurs  in  the  replication  in  actions 
of  Trespass  and  Trespass  on  the  case;  but  is  not  used  in  any 
other  stage  of  the  pleading.  In  these  actions,  it  is  the  proper 
form  when  the  plea  consists  merely  of  matter  of  excuse.  But 
when  it  consists  of,  or  comprises  matter  of  title  or  interest  in 
the  land,  etc.,  or  the  commandment  of  another — or  authority 
derived  from  the  opposite  party — or  matter  of  record — in  any 
of  these  cases,  the  replication  de  injurid  is  generally  improper  ;(h) 
and  the  traverse  of  any  of  these  matters  should  be  in  the  common 
form ;  that  is,  in  the  words  of  the  allegation  traversed. 

§  438.    Special  traverse. 

There  is  still  another  species  of  traverse,  which  differs  from 
the  common  form,  and  which  will  require  distinct  notice.  It 
is  known  by  the  denomination  of  a  special  traverse. (i)  Though 
formerly  in  very  frequent  occurrence,  this  species  has  now  fallen, 
in  great  measure,  into  disuse ;  but  the  subtlety  of  its  texture, 
its  tendency  to  illustrate  the  general  spirit  and  character  of 
pleading,  and  the  total  dearth  of  explanation  in  all  the  reports 
and  treatises  with  respect  to  its  principle,  seem  to  justify  the 
consideration  of  it  at  greater  length,  and  in  a  more  elaborate  man- 
ner, than  its  actual  importance  in  practice  demands.  Of  the 
special  traverse  the  following  is  an  example : 

DECLARATION. 

[A  declaration  in  covenant  for  the  non-payment  of  rent, 
brought  by  the  heir  of  the  lessor  against  the  lessee,  alleged 
that  one,  E.  B.,  was  seized  in  fee,  and  while  so  seized,  in  his 
lifetime,  demised  the  premises  to  the  defendant,  and  that  the  de- 
fendant covenanted  that  he  would  pay  the  rent,  and  then  entered 
upon  the  premises;  that  afterwards  the  lessor  died  and  that  the 
reversion  descended  to  the  plaintiff  as  his  son  and  heir,  who 

(h)  Crogate's  Case,  8  Rep.  67a;  Doct.  PI.  113,  115.  See  the  law 
on  this  subject  more  fully  explained,  and  the  exceptions  noticed.  1 
Chitty,  578;  1  Arch.  238;  2  Saund.  295,  n.  (1);  1  Saund.  244,  c.  n.  (7). 
And  see  the  nature  of  this  replication  fully  considered  in  the  late 
case  of  Selby  v.  Bardons,  3  Barn.  &  Aid.  2,  9  Bing.  756. 

(t)  It  is  also  called  a  formal  traverse ;  or  a  traverse  with  an  absque 
hoc. 


§    438  SPECIAL  TRAVERSE  857 

thereupon  became  seized  in  fee  of  the  reversion  of  the  premises, 
and  that  C.  D.  was  in  arrears  for  the  rent  and  had  refused  to  pay 
the  same.  To  this  declaration  the  defendant  filed  the  following 
plea :] 

PLEA. 

And  the  said  defendant,  by ,  his  attorney,  says  that  the 

said  E.  B.  deceased,  at  the  time  of  the  making  of  the  said  inden- 
ture, was  seized  in  his  demesne,  as  of  freehold  for  the  term  of  his 
natural  life,  of  and  in  the  said  demised  premises,  with  the  ap- 
purtenances, and  continued  so  seized  thereof  until  and  at  the  time 
of  his  death ;  and  that  after  the  making  of  the  said  indenture,  and 

before  the  expiration  of  the  said  term,  to  wit,  on  the day 

of  -   ,  in  the  year  of  our  Lord  -        — ,  at  -         -  aforesaid, 

the  said  E.  B.  died;  whereupon  the  term  created  by  the  said  in- 
denture wholly  ceased  and  determined :  Without  this,  that,  after 
the  making  of  the  said  indenture,  the  reversion  of  the  said  de- 
mised premises  belonging  to  the  said  E.  B.  and  his  heirs,  in  man- 
ner and  form  as  the  said  declaration  alleged.  (/)  [And  this  the 
said  defendant  is  ready  to  verify.  Wherefore  he  prays  judg- 
ment if  the  said  plaintiff  ought  to  have  or  maintain  her  -action 
aforesaid  against  him.] 

The  substance  of  this  plea  is,  that  the  father  was  seized  for 
life  only,  and  therefore  that  the  term  determined  at  his  death ; 
which  involves  a  denial  of  the  allegation  in  the  declaration,  that 
the  reversion  belonged  to  the  father  in  fee.  The  defendant's 
course  was,  therefore,  to  traverse  the  declaration.  But  it  will 
be  observed  that  he  does  not  traverse  it  in  the  common  form. 
If  the  common  traverse  were  adopted  in  this  case,  the  plea 

would  be — "The  said  C.  D.  by his  attorney,  says,  that 

after  the  making  of  the  said  indenture,  the  said  reversion  of 
the  said  demised  premises  did  not  belong  to  the  said  E.  B.  and 
his  heirs,  in  manner  and  form  as  the  said  plaintiff  hath  in  his 
said  declaration  alleged.  And  of  this  the  said  defendant  puts 
himself  upon  the  country;"  But  instead  of  this  simple  denial, 
the  defendant  adopts  a  special  traverse.  This  first  sets  forth 
the  new  affirmative  matter,  that  E.  B.  was  seized  for  life,  etc. ; — 
and  then  annexes  to  this  the  denial  that  the  reversion  belonged 
to  him  and  his  heirs  by  that  peculiar  and  barbarous  formula, 

(;')  2  Chitty,  500.  And  see  Brudnell  v.  Roberts,  2  Wils.  143;  Pal- 
mer v.  Elkins,  Lord  Ray.  1550. 


858  PRODUCTION  OF  ISSUE  §    439 

Without,  this,  that,  etc.,  concluding  [with  a  verification  and  prayer 
of  judgment].  The  affirmative  part  of  the  special  traverse  is 
called  its  indue ement;(k)  the  negative  is  called  the  absque  hoc(l) 
— those  being  the  Latin  words  formerly  used,  and  from  which 
the  modern  expression  without  this,  is  translated.  The  different 
parts  and  properties  here  noticed  are  all  essential  to  a  special 
traverse;  which  must  always  thus  consist  of  an  inducement,  a 
denial  and  a  conclusion  to  the  country  [formerly  a  verification]. 


§  439.    Use  and  object  of  special  traverse. 

The  use  and  object  of  a  special  traverse  is  the  next  subject 
for  consideration.  Though  this  relic  of  the  subtle  genius  of  the 
ancient  pleaders  has  now  fallen  (as  above  stated)  into  compar- 
ative disuse,  it  is  still  of  occasional  occurrence ;  and  it  is  remark- 
able, therefore,  that  no  author  should  have  hitherto  offered  any 
explanation  of  the  objects  for  which  it  was  originally  devised, 
and  in  a  view  to  which,  it  continues  to  be,  in  some  cases,  adopted. 
The  following  remarks  are  submitted,  as  those  which  have  oc- 
curred to  the  writer  of  this  work,  on  a  subject  thus  barren  of 
better  authority.  The  general  design  of  a  special  traverse,  as 
distinguished  from  a  common  one,  is  to  explain  or  qualify  the 
denial,  instead  of  putting  it  in  the  direct  and  absolute  form ;  and 
there  were  several  different  views,  in  reference  to  one  or  other 
of  which,  the  ancient  pleaders  seem  to  have  been  induced  to 
adopt  this  course. 

First.  A  simple  or  positive  denial  may,  in  some  cases,  be 
rendered  improper,  by  its  opposition  to  some  general  rule  of 
law.  Thus,  in  the  example  of  special  traverse  above  given,  it 
would  be  improper  to  traverse  in  the  common  form ;  viz.  "that 
after  the  making  of  the  said  indenture,  the  reversion  of  the  said 
demised  premises  did  not  belong  to  the  said  E.  B.  and  his  heirs," 
etc.;  because  by  a  rule  of  law  a  tenant  is  precluded  (or,  in  the 
language  of  pleading,  estopped}  from  alleging  that  his  lessor 

(k)  Bac.  Ab.,  Pleas,  etc.,  H.   1. 

(/)  The  denial,  however,  may  be  introduced  by  other  forms  of  ex- 
pression besides  absque  hoc.  Et  non  will  suffice.  Bennett  v.  Filkins,  1 
Saund.  21;  Walters  v.  Hodges,  Lut.  1625. 


§    439  USE  AND  OBJECT  OF  SPECIAL  TRAVERSE  859 

had  no  title  in  the  premises  demised  ;(w)  and  a  general  assertion 
that  the  reversion  did  not  belong  to  him  and  his  heirs,  would 
seem  to  fall  within  the  prohibition  of  that  rule.  But  a  tenant 
is  not  by  law  estopped  to  say  that  his  lessor  had  only  a  particular 
estate,  which  has  since  expired,  (w)  In  a  case,  therefore,  in 
which  the  declaration  alleged  a  seizin  in  fee  in  the  lessor,  and 
the  nature  of  the  defence  was,  that  he  had  a  particular  estate 
only  (e.  g.  an  estate  for  life,)  since  expired,  the  pleader  would 
resort,  as  in  the  example  given,  to  a  special  traverse — setting 
forth  the  lessor's  limited  title  by  way  of  inducement,  and  trav- 
ersing his  seizin  of  the  reversion  in  fee  under  the  absque  hoc. 
He  thus  would  avoid  the  objection  that  might  otherwise  arise 
on  the  ground  of  estoppel. 

Secondly.  A  common  traverse  may  sometimes  be  inexpedient 
as  involving  in  the  issue  in  fact,  some  question  which  it  would 
be  desirable  rather  to  develop,  and  submit  to  the  judgment  of 
the  court,  as  an  issue  in  law.  This  may  be  illustrated  by  the 
example  of  a  lease  not  expressing  any  certain  term  of  demise, 
which  had  been  brought  to  the  ordinary  for  his  confirmation, 
which  he  had  accordingly  confirmed  in  that  shape  under  his  seal ; 
and  where  the  instrument  was  afterwards  filled  up  as  a  lease 
for  fifty  years.  The  party  relying  upon  this  lease  states  that 
the  demise  was  to  the  defendant  for  the  term  of  fifty  years — and 
that  the  ordinary,  "ratified,  approved,  and  confirmed,  his  estate 
and  interest  in  the  premises." (0)  If  the  opposite  party  were 
to  traverse  in  the  common  form — "that  the  ordinary  did  not 
ratify,  approve  and  confirm  his  estate  and  interest  in  the  prem- 
ises, etc.,"  and  so  tender  issue  in  fact  on  that  point, — it  is  plain 
that  there  would  be  involved  in  such  issue  the  following  question 
of  law;  viz  whether  the  confirmation  by  the  ordi-nary  of  a  lease 
in  which  the  length  of  the  term  is  not,  at  the  time,  expressed, 
be  valid?  This  question  would,  therefore,  fall  under  the  de- 
Cm)  Blake  v.  Foster,  8  T.  R.  487. 
(n)  Ibid. 

(0)  This  case  would  seem  to  have  arisen  before  the  restraining 
statutes;  since  which  a  lease  by  ecclesiastical  persons,  even  with  con- 
firmation, is  good  for  no  longer  period  than  twenty-one  years,  or 
three  lives.  2  Bl.  Com.  320. 


860  PRODUCTION  OF  ISSUE  §    439 

cision  of  the  jury,  to  whom  the  issue  in  fact  is  referred ;  subject 
to  the  direction  of  the  judge  presiding  at  nisi  prius,  and  the 
ultimate  revision  of  the  court  in  bank.  Now  it  may,  for  many 
reasons,  be  desirable  that,  without  going  to  a  trial,  this  question 
should  rather  be  brought  before  the  court  in  the  first  instance; 
and  that  for  this  purpose  an  issue  in  law  should  be  taken.  The 
pleader,  therefore,  in  such  a  case,  would  state  the  circumstances 
of  the  transaction  in  an  inducement — substituting  a  special  for 
a  common  traverse.  As  the  whole  facts  thus  appear  on  the 
face  of  the  pleading,  if  his  adversary  means  to  contend  that  the 
confirmation  was,  under  the  circumstances,  valid  in  point  of 
law,  he  is  enabled  by  this  plan  of  special  traverse  to  raise  the 
point  by  demurring  to  the  replication;  on  which  demurrer  an 
issue  in  law  arises  for  the  adjudication  of  the  court. 

By  these  reasons,  and  sometimes  by  others  also,  which  the 
reader,  upon  examination  of  different  examples,  may,  after  these 
suggestions,  readily  discover  for  himself,  the  ancient  pleader 
appears  to  have  been  actuated  in  his  frequent  adoption  of  an 
inducement  of  new  affirmative  matter,  tending  to  explain  or 
qualify  the  denial.  But  though  these  reasons  seem  to  show  the 
purpose  of  the  inducement,  they  do  not  account  for  the  other 
distinctive  feature  of  the  special  traverse — viz,  the  absque  hoc. 
For  it  will  naturally  suggest  itself,  that  the  affirmative  matter 
might,  in  each  of  the  above  cases,  have  been  pleaded  per  se 
without  the  addition  of  the  absque  hoc.  This  latter  form  was 
dictated  by  another  principle.  The  direct  denial  under  the  absque 
hoc  was  rendered  necessary  by  this  consideration  that  the  affirm- 
ative matter,  taken  alone,  would  be  only  an  indirect  (or,  as  it  is 
called  in  pleading,  argumentative)  denial  of  the  precedent  state- 
ment: and  by  a  rule  which  will  be  considered  in  its  proper  place 
hereafter,  all  argumentative  pleading  is  prohibited.  In  order, 
therefore,  to  avoid  this  fault  of  argumentativeness,  the  course 
adopted  was,  to  follow  up  the  explanatory  matter  of  the  induce- 
ment with  a  direct  denial. (/>)  Thus,  to  allege,  as  in  the  example 
given  that  E.  B.  was  seized  for  life,  would  be  to  deny  by  impli- 

O)  3  Reeves'  Hist.  432;  Bac.  Ab.,  Pleas,  etc.,  H.  1;  Courtney  v. 
Phelps,  Sid.  301;  Herring  v.  Blacklow,  Cro.  Eliz.  30;  10  Hen.  6,  7, 
PI.  21. 


§    440  ESSENTIALS  OF  SPECIAL  TRAVERSE  861 

cation  only,  that  the  reversion  belonged  to  him  in  fee;  and  there- 
fore, to  avoid  argumentativeness,  a  direct  denial  that  the  re- 
version belonged  to  him  in  fee  is  added  under  the  formula  of 
absq-ue  hoc. 

*  *  *  *  * 

[The  conclusion  with  a  verification,  instead  of  to  the  country, 
was  rendered  necessary  by  another  rule  of  pleading  to  be  here- 
after discussed,  declaring  it  improper  for  a  plea  which  introduces 
new  matter  to  tender  issue,  and  hence  it  was  necessary  for  it 
to  conclude  with  a  verification.] 

§  440.    Essentials  of  special  traverse. 

*  *  *  *  * 

First,  it  is  a  rule,  that  the  inducement  should  be  such  as  in 
itself  amounts  to  a  sufficient  answer  in  substance  to  the  last 
pleading. (q)  For  (as  has  been  shown)  it  is  the  use  and  object 
of  the  inducement  to  give  an  explained  or  qualified  denial ;  that 
is,  to  state  such  circumstances  as  tend  to  show  that  the  last 
pleading  is  not  true;  the  absque  hoc  being  added  merely  to  put 
that  denial  in  a  positive  form,  which  had  previously  been  made 
in  an  indirect  one.  Now  an  indirect  denial  amounts  in  substance 
to  an  answer ;  and  it  follows,  therefore,  that  -an  inducement, 
if  properly  framed,  must  always  in  itself  contain  without  the 
aid  of  the  absque  hoc,  an  answer,  in  substance,  to  the  last  plead- 
ing. Thus,  in  the  example  given  the  allegation  that  E.  B.  was 
seized  for  life,  and  that  that  estate  is  since  determined,  is  in 
itself,  in  substance,  a  sufficient  answer,  as  denying  by  implication 
that  the  fee  descended  from  E.  B.  on  the  plaintiff.  That  sort 
of  special  traverse  containing  no  new  matter  in  the  inducement, 
*  *  is  no  exception  to  this  rule.  Thus,  to  say,  *  *  * 
that  the  defendant,  of  his  own  wrong  made  an  assault,  etc.,  is  of 
itself  an  answer ;  for  it  indirectly  denies  that  notice  was  given  of 
the  warrant. 

It  follows  from  the  same  consideration,  as  to  the  object  and 
use  of  a  special  traverse,  that  the  answer  given  by  the  induce- 

(q)  Bac.  Ab.  (H.)  1;  Com.  Dig.,  Pleader  (G.  20);  Anon.,  3  Salk. 
353;  Dike  r.  Ricks,  Cro.  Car,  336. 


862  PRODUCTION  OF  ISSUE  §    440 

ment  can  properly  be  of  no  other  nature  than  that  of  an  indirect 
denial.  Accordingly  we  find  it  decided,  in  the  first  place,  that 
it  must  not  consist  of  a  direct  denial. 

Thus,  the  plaintiff,  being  bound  by  recognizance  to  pay  J. 
Bush  £300  in  six  years,  by  £50  per  annum,  at  a  certain  place,  al- 
leged that  he  was  ready  every  day  at  that  place  to  have  paid  to 
Bush  the  said  £50,  but  that  Bush  was  not  there  to  receive  it.  To 
this  the  defendant  pleaded,  that  J.  Bush  was  ready  at  the  place  to 
receive  the  £ 50,  absque  hoc  that  the  plaintiff  was  there  ready  to 
have  paid  it.  The  plaintiff  demurred,  on  the  ground  that  the  in- 
ducement of  this  traverse  alleging  Bush  to  have  been  at  the  place 
ready  to  receive,  contained  a  direct  denial  of  the  plaintiff's  prec- 
edent allegation  that  Bush  was  not  there,  and  should  therefore 
have  concluded  to  the  country  without  the  absque  hoc;  and  judg- 
ment was  given  accordingly  for  the  plaintiff,  (r)  Again,  as  the 
answer  given  by  the  inducement  must  not  be  a  direct  denial,  so 
it  must  not  be  in  the  nature  of  a  confession  and  avoidance. (s) 
Thus,  if  the  defendant  makes  title  as  assignee  of  a  term  of  years 
of  A.,  and  the  plaintiff  in  answer  to  this,  claims  under  a  prior 
assignment  to  himself  from  A.  of  the  same  term,  this  is  a  con- 
fession and  avoidance;  for  it  admits  the  assignment  to  the  de- 
fendant, but  avoids  its  effect,  by  showing  the  prior  assignment. 
Therefore,  if  the  plaintiff  pleads  such  assignment  to  himself  by 
way  of  inducement,  adding,  under  an  absque  hoc,  a  denial  that 
A.  assigned  to  the  defendant,  this  special  traverse  is  bad.(f) 
The  plaintiff  should  have  pleaded  the  assignment  to  himself,  as 
in  confession  and  avoidance,  without  the  traverse. 

Again,  it  is  a  rule  with  respect  to  special  traverses,  that  the 
opposite  party  has  no  right  to  traverse  the  inducement, (M)  or 
(as  the  rule  is  more  commonly  expressed)  that  there  must  be 
no  traverse  upon  a  traverse. (v)  Thus,  in  the  example  given, 

(r)  Hughes  v.  Phillips,  Yelv.  38;  and  see  36  Hen.  6,  15. 

CO  Com.  Dig.,  Pleader  (G.  3);  Lambert  v.  Cook,  Lord  Ray.  238; 
Helier  v.  Whytier,  Cro.  Eliz.  650. 

(0  Com.   Dig.,  Pleader   (G.  3);   Helier  v.  Whytier,  Cro.  Eliz.  650. 

(M)  Anon.,  3  Salk.  353. 

(?)  Com.  Dig.,  Pleader  (G.  17);  Bac.  Ab.,  Pleas,  etc.  (H.  4);  The 
King  v.  Bishop  of  Worcester,  Vaughan,  62;  Digby  v.  Fitzharbert, 
Hob.  104. 


§    440  ESSENTIALS  OF  SPECIAL  TRAVERSE  863 

if  the  replication,  instead  of  taking  issue  on  the  traverse,  were 
to  traverse  the  inducement,  either  in  the  common  or  the  special 
form,  denying  that  E.  B.  at  the  time  of  making  the  indenture 
was  seized  in  his  demesne  as  of  freehold,  for  the  term  of  his 
natural  life,  etc.,  such  replication  would  be  bad,  as  containing  a 
traverse  upon  a  traverse.  The  reason  of  this  rule  is  clear  and 
satisfactory.  By  the  first  traverse,  a  matter  is  denied  by  one 
of  the  parties,  which  had  been  alleged  by  the  other,  and  which, 
having  once  alleged  it,  the  latter  is  bound  to  maintain,  instead 
of  prolonging  the  series  of  the  pleading,  and  retarding  the  issue, 
by  resorting  to  a  new  traverse.  However,  this  rule  is  open  to 
an  important  exception,  viz,  that  there  may  be  a  traverse  upon 
a  traverse,  when  the  first  is  a  bad  one;(w)  or  (in  other  words,) 
if  the  denial  under  the  absque  hoc  of  the  first  traverse  be  in- 
sufficient in  law,  it  may  be  passed  by,  and  a  new  traverse  taken 
on  the  inducement.  Thus,  in  an  action  of  prohibition,  the  plain- 
tiff declared  that  he  was  elected  and  admitted  one  of  the  common- 
council  of  the  city  of  London ;  but  that  the  defendants  delivered 
a  petition  to  the  court  of  common-council  complaining  of  an 
undue  election,  and  suggesting  that  they  themselves  were  chosen ; 
whereas  (the  plaintiff  alleged)  the  common-council  had  no  ju- 
risdiction to  examine  the  validity  of  such  an  election,  but  the 
same  belonged  to  the  court  of  the  mayor  and  aldermen.  The 
defendants  pleaded  that  the  common-council,  time  out  of  mind, 
had  authority  to  determine  the  election  of  common-councilmen ; 
and  that  the  defendants  being  duly  elected,  the  plaintiff  intruded 
himself  into  the  office;  whereupon  the  defendants  delivered  their 
petition  to  the  common-council,  complaining  of  an  undue  elec- 
tion; tt'ithout  this,  that  the  jurisdiction  to  examine  the  validity 
of  such  election  belonged  to  the  court  of  the  mayor  and  alder- 
men. The  plaintiff  replied  by  traversing  the  inducement ;  that  is, 
he  pleaded  that  the  common-council  had  no  authority  to  determine 
the  election  of  common-councilmen,  concluding  to  the  country. 
To  this  the  defendant  demurred,  and  the  court  adjudged  that 

(w)  Com.  Dig.,  Pleader  (G.  18,  19);  Thrale  v.  Bishop  of  London, 
1  H.  Bl.  376;  Richardson  v.  Mayor  of  Oxford,  2  H.  Bl.  186;  King 
qtii  tarn  v.  Bolton,  Stra.  116;  Cross  v.  Hunt,  Carth.  99. 


864  PRODUCTION  OF  ISSUE  §    440 

the  first  traverse  was  bad;  because  the  question  in  this  prohibi- 
tion was  not  whether  the  court  of  aldermen  had  jurisdiction, 
but  whether  the  common-council  had;  and  that  the  first  traverse 
being  immaterial,  the  second  was  well  taken,  (^r) 

As  the  inducement  cannot,  when  the  denial  under  the  absque 
hoc  is  sufficient  in  law,  be  traversed,  so,  for  the  same  reasons, 
it  cannot  "be  answered  by  a  pleading  in  confession  and  avoidance. 
But,  on  the  other  hand,  if  the  denial  be  insufficient  in  law,  the 
opposite  party  has  then  a  right  to  plead  in  confession  and  avoid- 
ance of  the  inducement,  or  (according  to  the  nature  of  the  case) 
to  traverse  it ;  or  he  may  demur  to  the  whole  traverse,  for  the 
insufficiency  of  the  denial. 

As  the  inducement  of  a  special  traverse,  when  the  denial  under 
the  absque  hoc  is  sufficient,  can  neither  be  traversed  nor  con- 
fessed and  avoided,  it  follows  that  there  is  in  that  case  no 
manner  of  pleading  to  the  inducement.  The  only  way,  therefore, 
of  answering  a  good  special  traverse  is  to  join  issue  upon  it. 
[i.  e.,  plead  to  the  absque  hoc.]  But  though  there  can  be  no  plead- 
ing to  an  inducement,  when  the  denial  under  the  absque  hoc  is  suf- 
ficient, yet  the  inducement  may  be  open  in  that  case  to  exception 
in  point  of  law.  If  it  be  faulty  in  any  respect,  as  (for  example) 
in  not  containing  a  sufficient  answer  in  substance,  or  in  giving 
an  answer  by  way  of  direct  denial,  or  by  way  of  confession  and 
avoidance,  the  opposite  party  may  demur  to  the  whole  traverse, 
though  the  absque  hoc  be  good  for  this  insufficiency  in  the  in- 
ducement, (y) 

[The  effect  of  the  special  traverse  is  to  postpone  the  issue  to 
one  stage  of  the  pleading  later  than  it  would  be  by  traverse  in  the 
common  form,  and  that  was  one  reason  for  its  adoption  by  de- 
fendants, but  by  the  rules  of  court  of  Hilary  Term,  1834,  it  was 
provided  that  the  plea  should  conclude  to  the  country,  and  by 
statute  in  Virginia,  adopted  many  years  ago,  following  the 
above  rules,  it  is  declared  that  "All  special  traverses,  or  traverses 
with  an  inducement  of  an  affirmative  matter,  shall  conclude  to 
the  country,  but  this  regulation  shall  not  preclude  the  opposite 

(.*•)   King  qui  tarn  v.  Bolton,  Stra.  117. 

Cv)   Com.   Dig.,    Pleader    (G.   22);    Foden   v.    Raines,   Comb.   245. 


§   441  TRAVERSES  IN  GENERAL  865 

party  from  pleading  over  to  the  inducement  when  the  traverse  is 
immaterial."5 

The  greater  portion  of  the  author's  discussion  of  the  special 
traverse  is  given  (though  much  is  omitted),  more  for  the  purpose 
of  showing  the  subtlety  of  the  ancient  pleaders  than  on  account 
of  its  present  utility.  It  is  not  believed  that  it  is  necessary  to  re- 
sort to  a  special  traverse  in  any  case,  though  occasionally  in- 
stances of  it  are  found  in  practice,  even  at  the  present  day.]6 

§  441.    Traverses  in  general. 

The  different  kinds  or  forms  of  traverse  having  been  now  ex- 
plained, it  will  be  proper  next  to  advert  to  certain  principles 
which  belong  to  traverses  in  general. 

The  first  of  these  that  may  be  mentioned,  is,  that  it  is  the  na- 
ture of  a  traverse,  to  deny  the  allegations  in  the  manner  and  form 
in  which  it  is  made ;  and,  therefore,  to  put  the  opposite  party  to 
prove  it  to  be  true  in  manner  and  form,  as  well  as  in  general  ef- 
fect. Accordingly  it  has  been  shown  that  he  has  often  exposed  at 
the  trial  to  the  danger  of  a  variance,  for  a  slight  deviation  in  his 
evidence  from  his  allegation.  This  doctrine  of  variance,  we  now 
perceive  to  be  founded  on  the  strict  quality  of  the  traverse  here 
stated.  On  this  subject  of  variance,  or  the  degree  of  strictness 
with  which  in  different  instances,  the  traverse  puts  the  fact  in  is- 
sue, there  are  a  great  number  of  adjudged  cases  involving  much 
nicety  of  distinction ;  but  it  does  not  belong  to  this  place  to  en- 
ter into  it  more  fully,  as  it  has  been  already  sufficiently  discussed 
in  a  preceding  part  of  this  work.  The  general  principle  is  that 
which  is  here  stated,  that  the  traverse  brings  the  fact  into  ques- 
tion, according  to  the  manner  and  form  in  which  it  is  alleged;  and 
that  the  opposite  party  must  consequently  prove  that  in  sub- 
stance, at  least,  the  allegation  is  accurately  true.  The  existence 
of  this  principle  is  indicated  by  the  wording  of  a  traverse ;  which, 
when  in  the  negative,  generally  denies  the  last  pleading,  modo  et 
forma,  "in  manner  and  form  as  alleged. "(.ra)  This  will  be  found 

.ra.  But  notwithstanding  the  words  modo  et  forma  it  is  enough  to 


5.  Section  3267,  Code. 

6.  See  Townsend  v.  Norfolk,  etc.,  R.  Co.,  105  Va.  22,  52  S.  E.  970. 


866  PRODUCTION  OF  ISSUE  §    442 

to  be  the  case  in  all  the  preceding  examples,  except  in  the  general 
issue  non  est  factum,  and  the  replication  de  injuria, — which  are 
almost  the  only  negative  traverses  that  are  not  pleaded  modo  et 
forma.  These  words,  however,  though  usual,  are  said  to  be  in  no 
case  strictly  essential,  so  as  to  render  their  omission  cause  of  de- 
murrer. (2) 

It  is  naturally  a  consequence  of  the  principle  here  mentioned, 
that  great  accuracy  and  precision  in  adapting  the  allegation  to 
the  true  state  of  the  fact,  are  observed  in  all  well  drawn  plead- 
ings ;  the  vigilance  of  the  pleader  being  always  directed  to  these 
qualities,  in  order  to  prevent  any  risk  of  variance  or  failure  of 
proof  at  the  trial,  in  the  event  of  a  traverse  by  the  opposite  party. 

§  442.    Traverse  on  matter  of  law. 

Again,  with  respect  to  all  traverses,  it  is  laid  down  as  a  rule, 
that  a  traverse  must  not  be  taken  upon  matter  of  law. (a}  For  a 
denial  of  the  law  involved  in  the  preceding  pleading,  is,  in  other 
words,  an  exception  to  the  sufficiently  of  that  pleading  in  point  of 
law;  and  is,  therefore,  within  the  scope  and  proper  province  of  a 
demurrer,  and  not  of  a  traverse.  Thus,  where  to  an  action  of 
trespass  for  fishing  in  the  plaintiff's  fishery,  the  defendant  plead 
that  the  locus  in  quo  was  an  arm  of  the  sea,  in  which  every  sub- 
ject of  the  realm  had  the  liberty  and  privilege  of  free  fishing,  and 
the  plaintiff,  in  his  replication,  traversed  that,  in  the  said  arm  of 
the  sea,  every  subject  of  the  realm  had  the  liberty  and  privilege 
of  free  fishing,  this  was  held  to  be  a  traverse  of  a  mere  inference 
of  law,  and  therefore  bad.(&)  Upon  the  same  principle,  if  a 
matter  be  alleged  in  pleading,  "by  reason  whereof"  (virtute  cu- 

prove  the  substance  of  the  allegation.  See  Litt.  Sec.  483;  Doct.  PI. 
344;  Harris  v.  Ferrand,  Hardr.  39;  Pope  v.  Skinner,  Hob.  72;  Car- 
rick  v.  Blagrave,  1  Brod.  &  Bing.  536.  As  to  the  effect  of  these 
words,  as  covering  the  whole  matter  of  the  allegation  traversed, 
see  Wetherill  v.  Howard,  3  Bing.  135. 

O)   Com.  Dig.,   Pleader  (G.  1);   Nevie  and  Cook's  Case,  2  Leo.  5. 

(a)  1  Saund.  23;  Doct.  PI.  351;  Kenicot  v.  Bogan,  Yelv.  200;  Prid- 
dle  &  Napper's  Case,  11  Rep.  lOb;  Richardson  v.  Mayor  of  Oxford,  2 
H.   Bl.   182. 

(b)  Richardson  v.  Mayor  of  Oxford,  2  H.  Bl.  182;  Hobson  v.  Mid- 
dleton,  6  B.  &  C.  297. 


§   443          MATTER  NOT  ALLEGED  MUST  NOT  BE  TRAVERSED  867 

jus)  a  certain  legal  inference  is  drawn,  as  that  plaintiff  "became 
seized,"  etc.,  or  the  defendant  "became  liable,  etc.,  this  virtute  cu- 
jus  is  not  traversable;(c)  because,  if  it  be  intended  to  question 
the  facts  from  which  the  seizin  or  liability  is  deduced,  the  trav- 
erse should  be  applied  to  the  facts,  and  to  those  only ;  and  if  the 
legal  inference  be  doubted,  the  course  is  to  demur.  But,  on  the 
other  hand,  where  an  allegation  is  mixed  of  law  and  fact,  it  may 
be  traversed. (d)  For  example,  in  answer  to  an  allegation,  that 
a  man  was  "taken  out  of  prison  by  virtue  of  a  certain  writ  of  ha- 
beas corpus,"  it  may  be  traversed  that  he  was  taken  out  of  prison 
by  "virtue  of  that  writ."(>)  So,  where  it  was  alleged  in  a  plea, 
that,  in  consequence  of  certain  circumstances  therein  set  forth, 
it  belonged  to  the  wardens  and  commonalty  of  a  certain  body  cor- 
porate, to  present  to  a  certain  church,  being  vacant,  in  their  turn, 
being  the  second  turn — and  this  was  answered  by  a  special  trav- 
erse— without  this,  that  it  belonged  to  the  said  wardens  and 
commonalty  to  present  to  the  said  church  at  the  second  term, 
when  the  same  become  vacant,  etc.,  in  manner  and  form  as  al- 
leged— the  court  held  the  traverse  good,  as  not  applying  to  a  mere 
matter  of  law,  "but  to  a  matter  of  law,"  or  rather  "of  right,  re- 
sulting from  facts. "(/)  So  it  is  held,  upon  the  same  principle, 
that  a  traverse  may  be  taken  upon  an  allegation  that  a  certain 
person  obtained  a  certain  church  by  simony,  (g) 

§  443.    Matter  not  alleged  must  not  be  traversed. 

It  is  also  a  rule,  that  a  traverse  must  not  be  taken  upon  matter 
not  alleged. (h)  The  meaning  of  this  rule  will  be  sufficiently  ex- 
plained by  the  following  cases.  A  woman  brought  an  action  of 

(c)   Doct.    PI.   351;    Priddle   &   Napper's   Case,   11   Rep.    lOb. 

(rf)  1  Saund.  23,  note  5,  and  see  the  instances  cited;  Bac.  Ab., 
Pleas,  etc.,  p.  380,  note  b  (5th  Ed.);  Beal  v.  Simpson,  1  Lord  Ray. 
412;  Grocer's  Co.  v.  Archbishop  of  Canterbury,  3  Wils.  214. 

(?)   Beale  v.  Simpson,  1  Lord  Ray.  412;  Treby,  C.  J.,  cont. 

(/)   Grocer's  Co.  v.   Archbishop  of  Canterbury,  3   Wils.  214. 

(g)  Ibid.;  Rast.  Ent.  532a;  and  see  this  subject  copiously  dis- 
cussed in  Lucas  v.  Nockells,  4  Bing.  729,  and  in  1  Mo.  &  Pa.  783 
(in  error).  See  also,  Hume  v.  Liversedge,  1  Cromp.  &  Mel.  332. 

(/?)  1  Saund.  312d,  note  4;  Doct.  PI.  358;  Cross  v.  Hunt,  Garth.  99; 
Powers  v.  Cook,  1  Lord  Ray.  63;  1  Salk.  298. 


868  PRODUCTION  OF  ISSUE:  §  443 

debt  on  a  deed,  by  which  the  defendant  obliged  himself  to  pay 
her  2001.  on  demand  if  he  did  not  take  her  to  wife ;  and  alleges  in 
her  declaration,  that  though  she  had  tendered  herself  to  marry  the 
defendant  he  refused,  and  married  another  woman.  The  defend- 
ant pleaded,  that  after  making  the  deed,  he  offered  himself  to 
marry  the  plaintiff,  and  she  refused ;  absque  hoc,  "that  he  refused 
to  take  her  for  his  wife,  before  she  had  refused  to  take  him  for 
her  husband."  The  court  was  of  the  opinion  that  this  traverse  was 
bad ;  because  there  had  been  no  allegation  in  the  declaration,  "that 
the  defendant  had  refused  before  the  plaintiff  had  refused;"  and 
therefore  the  traverse  went  to  deny  what  the  plaintiff  had  not  af- 
firmed, (i)  The  plea  in  this  case  ought  to  have  been  in  confession 
and  avoidance;  stating  merely  the  affirmative  matter,  that  before 
the  plaintiff  offered  the  defendant  offered,  and  that  the  plaintiff 
had  refused  him ;  and  omitting  the  absque  hoc.  Again,  in  an  ac- 
tion of  debt  on  bond  against  the  defendant,  as  executrix  of  J.  S., 
she  pleaded  in  abatement,  that  J.  S.  died  intestate  and  that  admin- 
istration was  granted  to  her.  On  demurrer,  it  was  objected,  that 
she  should  have  gone  on  to  traverse,  "that  she  meddled  as  execu- 
trix before  the  administration,  granted ;"  because,  if  she  so  med- 
dled, she  was  properly  charged  as  executrix,  notwithstanding  the 
subsequent  grant  of  letters  of  administration.  But  the  court  held 
the  plea  good  in  that  respect.  And  Holt,  C.  J.,  said  that  if  the 
defendant  had  taken  such  traverse,  it  had  made  her  plea  vicious ; 
for  it  is  enough  for  her  to  show  that  the  plaintiff's  writ  ought  to 
abate ;  which  she  has  done,  in  showing  that  she  is  chargeable  only 
by  another  name.  Then,  as  to  the  traverse,  that  she  did  not  ad- 
minister as  executrix  before  the  letters  of  administration  were 
granted,  it  would  be  to  traverse  what  is  not  alleged  in  the  plain- 
tiff's declaration ;  which  would  be  against  a  rule  of  law,  "that  a 
man  shall  never  traverse  that  which  the  plaintiff  has  not  alleged 
in  his  declaration. "(/)  There  is,  however,  the  following  excep- 
tion to  this  rule;  viz,  that  a  traverse  may  be  taken  upon  matter 
zvhich,  though  not  expressly  alleged,  is  necessarily  implied. (k) 

(0   Cross  v.  Hunt,  Garth.  99. 

(;')    Power  v.  Cook,  1  Lord  Ray.  63;  1  Salk.  298,  S.  C. 
(k)   I  Saund.  312d,  n.  4;  Gilbert  v.  Parker,  2  Salk.  629;  6  Mod.  158, 
S.  C. 


§    444  TRAVERSING  THE  MAKING  OF  A  DEED  869 

Thus,  in  replevin  for  taking  cattle,  the  defendant  made  cogni- 
zance (/)  that  A.  was  seized  of  the  close  in  question,  and  by  his 
command  the  defendant  took  the  cattle  damage  feasant.  The 
plaintiff  pleaded  in  bar,  that  he  himself  was  seized  of  one-third 
part,  and  put  in  his  cattle,  absque  hoc,  "that  the  said  A.  was 
seized,  not  that  A.  was  sole  seised."  On  demurrer,  it  was  ob- 
jected, that  this  traverse  was  taken  on  matter  not  alleged,  the  al- 
legation being,  that  A.  was  sole  seized.  But  the  court  held,  that 
in  the  allegation  of  seizin,  that  of  sole  seizin  was  necessarily  im- 
plied ;  and  that  whatever  is  necessarily  implied  is  traversable  as 
much  as  if  it  were  expressed.  Judgment  for  plaintiff.  (//)  The 
court,  however,  observed,  that  in  this  case  the^  plaintiff  was  not 
obliged  to  traverse  the  sole  seizin ;  and  that  the  effect  of  merely 
traversing  the  seisin  modo  et  forma,  as  alleged,  would  have  been 
the  same  on  the  trial  as  that  of  traversing  the  sole  seizin. 

§  444.    Traversing  the  making  of  a  deed. 

Another  rule  relative  to  traverses  (though  of  a  more  special 
and  limited  application  than  those  hitherto  considered),  is  the  fol- 
lowing :  that  a  party  to  a  deed  who  traverses  it,  must  plead  non 
est  factiun,  and  should  not  plead  that  he  did  not  grant,  did  not 
demise,  etc.  This  rule  seems  to  depend  on  the  doctrine  of  es- 
toppel. 

A  man  is  sometimes  precluded  in  law  from  alleging  or  denying 
a  fact  in  consequence  of  his  own  previous  act,  allegation  or  denial 
to  the  contrary,  and  this  preclusion  is  called  an  estoppel. (m) 

(/)  The  action  of  replevin  differs  from  other  actions  in  the  names 
of  the  pleadings.  If  the  defendant  pleads  some  matter  confessing 
the  taking,  but  showing  lawful  title  or  excuse,  such  pleading  is  not 
(as  it  would  be  in  other  actions)  called  a  plea  in  bar,  but  an  avowry  or 
a  cognisance;  the  former  term  applying  to  the  case  where  the  defend- 
ant sets  up  right  or  title  in  himself;  the  latter  being  used  when  he 
alleges  the  right  or  title  to  be  in  another  person,  by  whose  command 
he  acted.  Com.  Dig.,  Pleader  (3  K.  13,  14).  The  answer  to  the 
avowry  or  cognizance  is  called  plea  in  bar;  and  then  follow  replication, 
rejoinder,  etc.,  the  ordinary  name  of  each  pleading  being  thus  post- 
poned by  one  step. 

(//)   Gilbert  v.  Parker,  2  Salk.  629;  6  Mod.  158,  S.  C. 

(MJ)  "An  estoppel  is  when  a  man  is  concluded  by  his  own  act  or 
acceptance  to  say  the  truth."  Co.  Litt.  352a. 


870  PRODUCTION   Of  ISSUED  §    444 

It  may  arise  either  from  matter  of  record,  from  the  deed 
of  the  party,  or  from  matter  in  pais,  that  is  matter  of  fact. 
Thus,  any  confession  or  admission  made  in  pleading  in  a  court 
of  record,  whether  it  be  express,  or  implied  from  pleading  over, 
without  a  traverse,  will  preclude  the  party  from  afterwards 
contesting  the  same  fact  in  the  same  suit,  (w)  This  is  an  estoppel 
by  matter  of  record.  As  an  instance  of  an  estoppel  by  deed,  may 
be  mentioned  the  case  of  a  bond  reciting  a  certain  fact.  The 
party  executing  that  bond  will  be  precluded  from  afterwards 
denying,  in  any  action  brought  upon  that  instrument,  the  fact 
so  recited.  (0)  An  example  of  an  estoppel  by  matter  in  pais 
occurs  when  one.  man  has  accepted  rent  of  another.  He  will 
be  estopped  from  afterwards  denying,  in  any  action  with  that 
person,  that  he  was,  at  the  time  of  such  acceptance,  his  tenant.  (/>) 

Now  it  is  from  this  doctrine  of  estoppel,  apparently,  that  the 
rule  under  consideration  as  to  the  mode  of  traversing  deeds 
has  resulted.  For  though  a  party,  against  whom  a  deed  is 
alleged,  may  be  allowed,  consistently  with  the  doctrine  of  estop- 
pel, to  say  non  est  factum,  viz,  that  the  deed  is  not  his,  he  is  on 
the  other  hand  precluded  by  that  doctrine  from  denying  its 
effect  or  operation;  because,  if  allowed  to  say,  non  concessit 
or  non  demisit,  when  the  instrument  purports  to  grant,  or  to 
demise,  he  would  be  permitted  to  contradict  his  own  deed. 
Accordingly,  it  will  be  found  that  in  the  case  of  a  person  not  a 
party,  but  a  stranger  to  the  deed,  the  rule  is  reversed,  and  the 
form  of  traverse  in  that  case  is  non  concessit, (pp}  etc.;  the  rea- 
son of  which  seems  to  be  that  estoppels  do  not  hold  with  respect 
to  strangers. 

The  doctrine  of  traverses  being  now  discussed,  the  next  sub- 
ject for  consideration  is : 

(n)   Bract.    421a;    Com.    Dig.,    Estoppel    (A.    1.) 

(o)  Bonner  v.  Wilkinson,  5  Barn.  &  Aid.  682.  And  see  Baker 
v.  Dewey,  1  Barn.  &  Cres.  704. 

(/>)   Com.    Dig.,    Estoppel    (A.    3);    Co.    Litt.    352a. 

(/>/>)  Taylor  v.  Needham,  2  Taunt.  278.  N.  B.  The  court  there 
lay  it  down  that  the  plea  of  non  concessit,  etc.,  brings  into  issue  the 
title  of  the  grantor,  as  well  as  the  operation  of  the  deed.  See  also, 
Eden's  Case,  6  Rep.  15;  Hellyer's  Case,  6  Rep.  25;  Hynde's  Case, 
4  Rep.  71  b;  43  Edw.  3,  1. 


§    445  PLEADINGS   IN    CONFESSION   AND  AVOIDANCE  871 

§  445.    Pleadings  in  confession  and  avoidance. 

2.  The  nature  and  properties  of  pleadings  in  confession  and 
avoidance. 

First,  with  respect  to  their  division.  Of  pleas  in  confession 
and  avoidance,  some  are  distinguished  (in  reference  to  their 
subject-matter)  as  pleas  in  justification  or  excuse,  others  as 
pleas  in  discharge. (q)  The  pleas  of  the  former  class  show  some 
justification  or  excuse  of  the  matter  charged  in  the  declaration: 
those  of  the  latter,  some  discharge  or  release  of  that  matter. 
The  effect  of  the  former,  therefore,  is  to  show  that  the  plaintiff 
never  had  any  right  of  action,  because  the  act  charged  was 
lawful ;  the  effect  of  the  latter,  to  show  that  though  he  had  once 
a  right  of  action,  it  is  discharged  or  released  by  some  matter 
subsequent.  Of  those  in  justification  or  excuse,  the  plea  of  son 
assault  demesne  is  an  example ;  of  those  in  discharge,  a  release. 
This  division  applies  to  pleas  only;  for  replications  and  other 
tubsequent  pleadings,  in  confession  and  avoidance,  are  not  sub- 
ject to  any  such  classification. 

As  to  the  form  of  pleadings  in  confession  and  avoidance,  it 
will  be  sufficient  to  observe,  that,  in  common  with  all  pleadings 
whatever,  which  do  not  tender  issue,  they  always  conclude  with 
a  verification,  etc. 

With  respect  to  the  quality  of  these  pleadings  it  is  to  be  ob- 
served, that  it  is  of  their  essence  (as  the  name  itself  imports) 
to  confess  the  truth  of  the  allegation  which  they  propose  to 
answer  or  avoid. 

*  *  *  *  * 

The  extent  and  nature  of  the  admission  required  is  defined 
by  the  following  rule — that  pleadings  in  confession  and  avoid- 
ance should  give  color. (u)  Color  is  a  term  of  the  -ancient 
rhetoricians,  and  was  adopted  at  an  early  period  into  the  lan- 
guage of  pleading,  (v)  It  signifies  an  apparent  or  prima  facie 

(q)   Com.  Dig.,  Pleader  (3  M.  12). 

(M)  See  Reg.  Plac.  304;  Hatton  v.  Morse,  3  Salk.  273;  Hallet  v. 
Bryt,  5  Mod.  252;  Holler  v.  Bush,  1  Salk.  394;  1  Chitty  498. 

(v)  It  occurs  at  least  as  early  as  the  reign  of  Edward  III.  See 
Year  Books,  38  Edw.  III.  28;  40  Edw.  Ill,  23. 


872  PRODUCTION  OF  ISSUE;  §  446 

right;  and  the  meaning  of  the  rule  that  pleadings  in  confession 
and  avoidance  should  give  color,  is  that  they  should  confess  the 
matter  adversely  alleged,  to  such  an  extent  at  least,  as  to  ad- 
mit some  apparent  right  in  the  opposite  party,  which  re- 
quires to  be  encountered  and  avoided  by  the  allegation  of  the 
new  matter.  In  the  instances  formerly  given  of  the  plea  of 
release,  and  the  replication  of  duress,  in  an  action  of  covenant, 
the  admission  is  absolute  and  unqualified — for  the  plea  supposes 
that  a  deed  of  covenant  had  been  executed,  and  that  a  breach  of 
it  had  been  committed ;  and  the  replication  that  a  deed  of  release 
had  been  executed;  so  that  there  is  at  each  step  an  apparent 
right  admitted  in  the  opposite  party,  which  is  avoided  in  the 
one  case  by  the  allegation  of  the  release,  and  in  the  other  by 
the  allegation  of  duress.  So  where  to  an  action  of  assumpsit, 
the  defendant  pleads  in  confession  and  avoidance  that  he  did 
not  promise  within  six  years  before  the  action  brought,  it  is  an 
absolute  implied  admission  of  the  truth  of  the  adverse  allegation 
that  he  had  at  one  time  made  such  promise  as  alleged,  and  that 
there  is  therefore  an  apparent  right  in  the  plaintiff;  and  this 
right  is  avoided  by  relying  on  the  lapse  of  time. 


§  446.    Express  color. 

The  kind  of  color  to  which  these  observations  relate,  being 
a  latent  quality,  naturally  inherent  in  the  structure  of  all  regular 
pleadings  in  confession  and  avoidance,  has  been  called  implied 
color,  to  distinguish  it  from  another  kind,  which  is  in  some 
instances  formally  inserted  in  the  pleading,  and  is  therefore, 
known  by  the  name  of  express  color,  (w)  It  is  the  latter  kind 
to  which  the  technical  term  most  usually  is  applied,  and  to  this 
the  books  refer,  when  color  is  mentioned  per  se,  without  the 
distinction  between  express  and  implied.  Color,  in  this  sense, 
is  defined  to  be  "a  feigned  matter,  pleaded  by  the  defendant  in 
an  action  of  trespass,  from  which  the  plaintiff  seems  to  have  a 
good  cause  of  action,  whereas  he  has  in  truth  only  an  appearance 
or  color  of  cause."  [The  doctrine  of  express  color  is  simply  a 
relic  of  the  subtlety  of  ancient  pleading,  and  is  seldom,  if  ever, 

(w)   Hatton  v.  Morse,  3  Salk.  273;  Reg.  Plac.  304;  Holt's  Inst.  562. 


§  447        THE  NATURE;  AND  PROPERTIES  OF  PLEADINGS  873 

used  in  practice.  It  is  said  that  it  may  still  be  used  in  the  actions 
of  trespass  and  trespass  on  the  case,  but  it  is  never  necessary, 
and  hence  the  author's  discussion  is  omitted.] 


§  447.  3.  The  nature  and  properties  of  pleadings  in  gen- 
eral— without  reference  to  their  quality,  as  being  by 
way  of  traverse,  or  confession  and  avoidance. 

First,  it  is  a  rule,  tlmt  every  pleading  must  be  an  answer  to 
the  whole  of  what  is  adversely  alleged,  (.r) 

Therefore,  in  an  action  of  trespass  for  breaking  a  close,  and 
cutting  down  300  trees,  if  the  defendant  pleads  as  to  cutting 
down  all  but  200  trees,  some  matter  of  justification  or  title,  and 
as  to  the  200  trees  says  nothing,  the  plaintiff  is  entitled  to  sign 
judgment  as  by  nil  dicit  against  him  in  respect  of  the  200  trees, 
and  to  demur  or  reply  to  the  plea  as  to  the  remainder  of  the 
trespasses.  In  such  cases  the  plaintiff  should  take  care  to  avail 
himself  of  his  advantage  in  this  (which  is  the  only  proper) 
course.  For, '  if  he  demurs,  or  replies  to  the  plea,  without 
signing  judgment  for  the  part  not  answered,  the  whole  action 
is  said  to  be  discontinued. (y)  The  principle  of  this  is  that  the 
plaintiff,  by  not  taking  judgment  as  he  was  entitled  to  do  for  the 
part  unanswered,  does  not  follow  up  his  entire  demand;  and 
there  is  consequently  that  sort  of  chasm  or  interruption  in  the 
proceedings,  which  is  called  in  technical  phrase  a  discontinuance. 
And  such  discontinuance  will  amount  to  error  on  the  record,  (z)7 

O)  Com.  Dig.,  Pleader  (E.  1),  (F.  4);  1  Saund.  28,  n.  3;  Herlaken- 
den's  Case,  4  Reg.  62a. 

Oy)  Com.  Dig.,  Pleader  (E.  1),  (F.  4);  1  Saund.  28,  n.  3;  Herlaken- 
den's  Case,  4  Rep.  62a. 

(z)  Wats  v.  King  Cro.  Pac.  353.  Such  error  is  cured,  however, 
after  verdict,  by  the  statute  of  Jeofails,  32  H.  8,  ch.  30;  and  after 
judgment  by  nil  dicit,  confession,  or  non  sum  informatus,  by  4  Ann., 
ch.  16. 


7.  This  rule  is  technical,  but  was  recognized  in  Exchange  Bank  v 
Southall,  12  Gratt.  314.  It  is  doubtful,  however,  at  this  day  when 
the  courts  are  looking  to  the  substance  of  things  and  not  their  form 
whether  such  a  mere  technicality  should  or  will  be  enforced.  It 


874  PRODUCTION  of  ISSUE  §  447 

It  is  to  be  observed,  however,  that  as  to  the  plaintiff's  course  of 
proceeding,  there  is  a  distinction  between  a  case  like  this,  where 
the  defendant  does  not  profess  to  answer  the  whole,  and  a  case, 
where,  by  the  commencement  of  his  plea,  he  professes  to  do  so, 
but,  in  fact,  gives  a  defective  and  partial  answer,  applying  to 
part  only.  The  latter  case  amounts  merely  to  insufficient  plead- 
ing; and  the  plaintiff's  course,  therefore,  is,  not  to  sign  judgment 
for  the  part  defectively  answered,  but  to  demur  to  the  whole 
plea. (a)8  It  is  also  to  be  observed,  that  where  the  part  of  the 
pleading,  to  which  no  answer  is  given,  is  immaterial,  or  such 
as  requires  no  separate  or  specific  answer,  for  example,  if  it 
be  mere  matter  of  aggravation,  the  rule  does  not  in  that  case 
apply,  (ft) 

Again,  it  is  a  rule,  that  every  pleading  is  taken  to  confess  such 

(a)   1   Saund.  28,  n.  3,  Thomas  v.   Heathorn,  2   Barn.   &  C.  477. 
(&)   1  Saund.  28,  n.  3. 


is  certainly  not  more  serious  than  going  to  trial  without  any  issue 
at  all  (ante,  p.  356-7)  and  it  not  unfrequently  happens  that  these 
partial  defences  are  made  at  one  term  and  the  case  continued  to  the 
next,  and  it  would  be  a  needless  hardship  on  plaintiffs  to  dismiss 
their  cases  for  the  merest  technicality  which  has  done  the  defendant 
no  harm.  Indeed,  it  would  simply  encourage  defendants  to  set  a 
trap  for  unwary  plaintiffs.  In  this  connection,  attention  is  called  to 
§  3302  of  the  Code,  which  is  as  follows: 

"If  the  defendant  file  a  plea  or  account  of  set  off,  which  covers  or 
applies  to  part  of  the  plaintiff's  demand,  judgment  may  be  forthwith 
rendered  for  the  part  not  controverted,  and  the  costs  accrued  until 
the  filing  of  the  plea  or  account,  and  the  case  shall  be  proceeded  with 
for  the  residue,  as  if  the  part  for  which  judgment  was  rendered  had 
not  been  included  therein.  And  if,  in  addition  to  such  plea  or  ac- 
count, the  defendant  plead  some  other  plea,  going  to  the  whole  or 
residue  of  the  demand,  the  case  shall  not  be  continued  as  to  the  part 
not  controverted  by  the  plea  or  account  of  set  offs,  unless  good  cause 
be  shown  for  such  continuance."  This  is  merely  declaratory  of  the 
common  law  except  as  to  costs. 

8.  This  rule  has  frequently  been  followed  in  Virginia.  Hunt  v. 
Martin,  8  Gratt.  578;  Merriman  v.  Cover,  104  Va.  428,  51  S.  E.  517.  A 
plea  which  professes  to  go  to  the  whole  of  the  plaintiff's  declaration 
containing  two  counts  but  at  most  only  answers  the  cause  of  action 
'set  up  in  one  count  of  the  declaration  is  bad.  Staunton  Tel.  Co.  v. 
Buchanan,  108  Va.  810,  62  S.  E.  928. 


§  448  EXCEPTIONS  TO  THE  RULE  875 

traversable  matters  alleged  on  the  other  side  as  it.  does  not 
traverse. (c)9  Thus,  in  the  example  of  an  action  on  an  indenture 
of  covenant,  the  plea  of  release,  as  it  does  not  traverse  the 
indenture,  is  taken  to  admit  its  execution;  and  the  replication 
of  duress,  on  the  same  principle,  is  an  admission  of  the  execution 
of  the  release.  So  the  plea  traversing  the  want  of  repair  is  an 
admission  of  the  indenture  of  demise.  The  effect  of  such  ad- 
mission is  extremely  strong;  for  it  concludes  the  party,  even 
though  the  jury  should  improperly  go  qut  of  the  issue,  and  find 
the  contrary  of  what  is  thus  confessed  on  the  record. (d)  The 
rule,  however,  it  will  i>e  observed,  extends  only  to  such  matters 
as  are  traversable.,  For  matters  of  law  or  any  other  matters, 
which  are  not  fit  subjects  of  traverse,  are  not  taken  to  be  ad- 
mitted by  pleading  over.  (/)  It  is  to  be  remarked  too,  that  the 
confession  operates  only  to  prevent  the  fact  from  being  after- 
wards brought  into  question  in  the  same  suit,  and  that  it  is  not 
conclusive  as  to  the  truth  of  the  fact  in  any  subsequent  action 
between  the  same  parties. (g)10 

§  448.    Exceptions  to  the  rule. 

Such  are  the  doctrines  involved  in  the  general  rule,  that  the 

(c)  Com.  Dig.,  Pleader  (G.  2);  Bac.  Ab.,  Pleas,  etc.,  pp.  322,  386 
(5th  Ed.);  Hudson  v.  Jones,  1  Salk.  91;  Nicholson  v.  Simpson,  11 
Mod.  336;  Fort.  356. 

(d}  Bac.  Ab.,  Pleas,  etc.,  p.  322  (5th  Ed.);  Wilcox  v.  Servant  of 
Skipwith,  2  Mod.  5. 

(/)   10  Ed.  4,  12;  The  King  v.  The  Bishop  of  Chester,  2  Salk.  561. 

(g)  It  would  formerly  conclude  in  a  subsequent  action  also  (if  be- 
tween the  same  parties),  unless  the  pleader  made  use  of  a  particular 
formula,  called  a  protestation.  But  by  the  late  rule  of  court,  Hil.  4, 
W.  4,  "no  protestation  shall  hereafter  be  made  in  any  pleadings,  but 
either  party  shall  be  entitled  to  the  same  advantage  in  that  or  other 
action,  as  if  a  protestation  had  been  made." 


9.  This  rule  does  not  apply  in  equity.     Matters  not  denied  by  the 
answer  are  not  taken  as  admitted  in  equity,  but  must  be  proved  by 
the  plaintiff.     Clinch   River  Min.   Co.  v.   Harrison,  91  Va.   122,  21   S. 
E.  660. 

10.  By  §  3266  of  the  Code  of  Virginia  it  is  declared  that  "no  party 
shall  be  prejudiced  by  omitting  a  protestation  in  any  pleading." 


876  PRODUCTION  OP  ISSUE  §    448 

party  must  either  demur,  or  plead  by  zvay  of  traverse,  or  by  way 
of  confession  and  avoidance.  It  remains,  however,  to  notice: 
Certain  exceptions  to  which  that  branch  of  the  rule  is  subject, 
which  relates  to  pleading;  and  which  requires  a  party  to  plead 
either  by  way  of  traverse,  or  by  way  of  confession  and  avoidance. 

(1)  First,  there  is  an  exception  in  the  case  of  dilatory  pleas;11 
for  a  plea  of  this  kind  merely  opposes  a  matter  of  form  to  the 
declaration,  and  does  not  tend  either  to  deny  or  to  confess  its 
allegations.    But  replications  and  subsequent  pleadings,  following 
on  dilatory  pleas,  are  not  within  this  exception. 

(2)  Again,  the  rule  is  not  applicable  to  the  case  of  pleadings 
in  estoppel. 

These  are  pleadings  which,  without  confessing  or  denying  the 
matter  of  fact,  adversely  alleged,  rely  merely  on  some  matter 
of  estoppel  as  a  ground  for  excluding  the  opposite  party  from 
the  allegation  of  the  fact.  Like  pleadings  in  abatement,  they 
have  formal  commencement  and  conclusion,  to  mark  their  spe- 
cial character  and  quality,  and  to  distinguish  them  from  pleadings 
in  bar.  Of  this  the  following  is  an  example : 

REPLICATION. 

And  the  said  plaintiff  saith,  that  the  said  defendant  ought  not 
to  be  admitted  or  received  to  plead  the  plea  by  him  above  pleaded, 
because  he  saith,  etc.  (And  then  after  stating  the  previous  act, 
allegation,  or  denial  of  the  opposite  party,  upon  which  the  estop- 
pel is  alleged  to  arise,  the  pleading  concludes  thus:)  Wherefore 
he  prays  judgment,  if  the  said  defendant  ought  to  be  admitted  or 
received  to  Ins  said  plea,  contrary  to  his  own  acknowledgment  and 
the  said  record,  etc.  (or  as  the  case  may  be).(h) 

(3)  Another  exception  to  that  branch  of  the  general  rule, 
which  requires  the  pleader  either  to  traverse,  or  to  confess  and 
avoid,  arises  in  the  case  of  what  is  called  a  new  assignment. 

It  has  been  seen  that  the  declarations  are  conceived  in  very 
general  terms ;  a  quality  which  they  derive  from  their  adherence 
to  the  tenor  of  those  simple  and  abstract  formulae — the  original 
writs — by  which  all  suits  were  in  ancient  times  commenced. 

(/O   2  Chitty,  416,  590. 


11.  As  to  dilatory  pleas  and  the  time  of  filing  the  same,  see  ante, 
§  183. 


§  448  EXCEPTIONS  TO  THE  RULE  877 

The  effect  of  this  is  that,  in  some  cases,  the  defendant  is  not 
sufficiently  guided  by  the  declaration  to  the  real  cause  of  com- 
plaint ;  and  is,  therefore,  led  to  apply  his  plea  to  a  different  matter 
from  that  which  the  plaintiff  has  in  view.  A  new  assignment  is  a 
method  of  pleading  to  which  the  plaintiff  in  such  cases  is  obliged 
to  resort  in  his  replication,  for  the  purpose  of  setting  the  de- 
fendant right.  An  example  shall  be  given  in  an  action  for 
assault  and  battery.  A  case  may  occur  in  which  the  plaintiff 
has  been  twice  assaulted  by  the  defendant;  and  one  of  these 
assaults  may  have  been  justifiable,  being  committed  in  self- 
defense,  while  the  other  may  have  been  committed  without  legal 
excuse.  Supposing  the  plaintiff  to  bring  his  action  for  the 
latter,  it  will  be  found  by  referring  to  the  example  formerly 
given  of  a  declaration  for  an  assault  and  battery,  that  the  state- 
ment is  so  general,  as  not  to  indicate  to  which  of  the  two  assaults 
the  plaintiff  means  to  refer. (t)  The  defendant  may,  therefore, 
suppose,  or  affect  to  suppose,  that  the  first  is  the  assault  intended, 
and  will  plead  son  assault,  demesne.  This  plea  the  plaintiff  can- 
not safely  traverse;  because,  as  an  assault  was  in  fact  committed 
by  the  defendant,  under  the  circumstances  of  excuse  here  al- 
leged, the  defendant  would  have  a  right  under  the  issue  joined 
upon  such  traverse,  to  prove  those  circumstances,  and  to  pre- 
sume that  such  assault,  and  no  other,  is  the  cause  of  action. 
And  it  is  evidently  reasonable  that  he  should  have  this  right; 
for,  if  the  plaintiff  were,  at  the  trial  of  the  issue,  to  be  allowed 
to  set  up  a  different  assault,  the  defendant  might  suffer  by 
mistake  into  which  he  had  been  led  by  the  generality  of  the 
plaintiff's  declaration.  The  plaintiff,  therefore,  in  the  case  sup- 
posed, not  being  able  safely  to  traverse,  and  having  no  ground 
either  for  demurrer,  or  for  pleading  in  confession  and  avoid- 
ance, has  no  course,  but  by  a  new  pleading  to  correct  the  mistake 
occasioned  by  the  generality  of  the  declaration,  and  to  declare 
that  he  brought  his  action,  not  for  the  first,  but  for  the  second 

(f)  As  for  the  day  and  place,  alleged  in  the  declaration,  it  will  be 
shown  hereafter  that  they  are  not  considered  as  material  to  be  proved 
in  such  a  case,  and  are  consequently  alleged  without  much  regard  to 
the  true  state  of  fact. 


878  PRODUCTION  OF  ISSUE;  §  448 

assault;  and  this  is  called  a  new  assignment.     Its  form,  in  the 
example  chosen,  would  be  as  follows : 

REPLICATION. 

To  the  Plea  of  Son  Assault  Demesne. 

By  Way  of  New  Assignment. 

And  the  said  plaintiff  says,  that  he  brought  this  action,  not  for 
the  trespasses  in  the  said  second  plea  acknowledged  to  have  been 
done,  but  for  that  the  said  defendant  heretofore,  to  wit,  on  the 
—  day  of  -  — ,  in  the  year  of  our  Lord  -  — ,  with  force 
and  arms,  upon  another  and  different  occasion,  and  for  another 
and  different  purpose  than  in  the  second  plea  mentioned,  made 
another  and  different  assault  upon  the  said  plaintiff  than  the  as- 
sault in  the  said  second  plea  mentioned,  and  then  and  there  beat, 
wounded,  and  illtreated  him  in  manner  and  form  as  the  said 
plaintiff  hath  above  thereof  complained;  which  said  trespasses 
above  newly  assigned  are  other  and  different  trespasses  than  the 
said  trespass  in  the  said  second  plea  acknowledged  to  have  been 
done.  And  this  the  said  plaintiff  is  ready  to  verify.  [Wherefore, 
inasmuch  as  the  said  defendant  hath  not  answered  the  said  tres- 
pass above  newly  assigned,  he,  the  said  plaintiff  prays  judgment, 
and  his  damages  by  him  sustained  by  reason  of  the  committing 
thereof,  to  be  adjudged  to  him,  etc.] 

The  mistake  being  thus  set  right  by  the  new  assignment,  it 
remains  for  the  defendant  to  plead  such  matter  as  he  may  have 
in  answer  to  the  assault  last  mentioned,  the  first  being  now  out 
of  question. 

*  *  *  *  * 

As  the  object  of  a  new  assignment  is  to  correct  a  mistake 
occasioned  by  the  generality  of  the  declaration,  it  always  occurs 
in  answer  to  a  plea,  and  is,  therefore,  in  the  nature  of  a  repli- 
cation. It  is  not  used  in  any  other  part  of  the  pleading,  because 
the  statements  subsequent  to  the  declaration  are  not  in  their 
nature  such,  when  properly  framed,  as  to  give  rise  to  the  kind 
of  mistake  which  requires  to  be  corrected  by  a  new  assignment. 

A  new  assignment  chiefly  occurs  in  an  action  of  trespass,  but 
it  seems  to  be  generally  allowed  in  all  actions  in  which  the  form 
of  declaration  makes  the  reason  of  the  practice  equally  appli- 
cable. (/) 

(/)  1  Chitty,  602;  Vin.  Ab.,  Novel  Assignment,  4,  5;  3  Went.  151; 
Batt  v.  Bradley,  Cro.  Jac.  141. 


§  448  EXCEPTIONS  TO  THE  RULE  879 

Several  new  assignments  may  occur  in  the  course  of  the  same 
series  of  pleading.  Thus,  in  the  above  example,  if  it  be  supposed 
that  three  different  assaults  had  been  committed,  two  of  which 
were  justifiable,  the  defendant  might  plead  as  above  to  the  dec- 
laration, and  then,  by  way  of  plea  to  the  new  assignment,  he 
might  again  justify  in  the  same  manner  another  assault;  upon 
which  it  would  become  necessary  for  the  plaintiff  to  new  assign 
a  third,  and  this  upon  the  same  principle  by  which  the  first  new 
assignment  was  required. (k) 

A  new  assignment  is  said  to  be  in  the  nature  of  a  new  decla- 
ration.^} It  seems  however  to  be  more  properly  considered  as 
a  repetition  of  the  declaration  (//)  differing  only  in  this,  that  it 
distinguishes  the  true  ground  of  complaint,  as  being  different 
from  that  which  is  covered  by  the  plea.  Being  in  the  nature 
of  a  new  or  repeated  declaration,  it  is  consequently  to  be  framed 
with  as  much  certainty,  or  specification  of  circumstances,  as  the 
declaration  itself. (m)  In  some  cases,  indeed,  it  should  be  even 
more  particular,  so  as  to  avoid  the  necessity  of  another  new  as- 
signment. 

*  *  *  *  * 

The  rule  under  consideration  and  its  exceptions  being  now 
discussed,  the  last  point  of  remark  relates  to  an  inference  or 
deduction  to  which  it  gives  rise.  It  is  implied  in  this  rule,  that 
as  the  proceeding  must  either  be  by  demurrer,  traverse,  or  con- 
fession and  avoidance,  so  any  of  these  forms  of  opposition  to 
the  last  pleading  is  in  itself  sufficient. 

There  is,  however,  an  exception  to  this,  in  a  case  which  the 
books  consider  to  be  anomalous  and  solitary.  It  is  as  follows : 
If  in  debt  on  a  bond  conditioned  for  the  performance  of  an 
award,  the  defendant  pleads  that  no  award  was  made,  and  the 
plaintiff  in  reply  alleges,  that  an  award  was  made,  setting  it  forth, 
it  is  held  that  he  must  also  proceed  to  state  a  breach  of  the  award ; 
and  that  without  stating  such  breach,  the  replication  is  insuffi- 

(&)   1  Chitty,  614;  1  Saund.  299c. 

(/)   Bac.  Ab.  Trespass  (I),  4,  2;  1  Saund.  299c. 

(//)    Vide  1   Chitt.   602. 

(m)   Bac.  Ab.,  ubi  supra;  1  Chitty,  610. 


PRODUCTION  OF  ISSUE  §    449 

cient.(w)  This,  as  has  been  observed,  is  an  anomaly,  for,  as 
by  alleging  and  setting  forth  the  award,  he  fully  traverses  the 
plea  which  denied  the  existence  of  an  award,  the  replication 
would  seem,  according  to  the  general  rule  under  consideration, 
to  be  sufficient  without  the  specification  of  any  breach.  And 
in  accordance  with  that  rule,  it  is  expressly  laid  down  that  in 
all  other  cases,  "if  the  defendant  pleads  a  special  matter  that 
admits  and  excuses  a  non-performance,  the  plaintiff  need  only 
answer  and  falsify  the  special  matter  alleged;  for  he  that  ex- 
cuses a  non-performance  supposes  it,  and  the  plaintiff  need  not 
show  that  which  the  defendant  hath  supposed  and  admitted." 


II. 
§  449.    Upon  a  traverse  issue  must  be  tendered. 

In  the  account  given  in  another  place  of  traverses,  it  was 
shown,  that  [except  in  the  case  of  a  special  traverse]  the  differ- 
ent forms  all  involve  a  tender  of  issue.  The  rule  under  consid- 
eration prescribes  this  as  a  necessary  incident  to  them,  and 
establishes  it  as  a  general  principle,  that  wherever  a  traverse 
takes  place,  or,  in  other  words,  wherever  a  denial  or  contradic- 
tion of  fact  occurs  in  pleading,  issue  ought  at  the  same  time  to 
be  tendered  on  the  fact  denied.  The  reason  is  that  as,  by  the 
contradiction,  it  sufficiently  appears  what  is  the  issue  or  matter 
in  dispute  between  the  parties,  it  is  time  that  the  pleading  should 
now  close,  and  that  the  method  of  deciding  this  issue  should  be 
adjusted. 

The  formulae  of  tendering  the  issue  in  fact  vary  of  course 
according  to  the  mode  of  trial  proposed. 

The  tender  of  an  issue  to  be  tried  by  jury  is  by  a  formula 
called  the  conclusion  to  the  country.  This  conclusion  is  in  the 
following  words  when  the  issue  is  tendered  by  the  defendant  : 
"And  of  this  the  said  defendant  puts  himself  upon  the  country." 
When  it  is  tendered  by  the  plaintiff,  the  formula  is  as  follows  : 
"And  this  the  said  plaintiff  prays  may  be  inquired  of  by  the 

(«)  1  Saund.  103;  Meredith  v.  Alleyn,  1  Salk.  138;  Carth.  116,  S.  C. 
Though  this  is  considered  as  a  solitary  case  (vide  1  Salk.  138),  it  may 
be  observed  that  another  analogous  one  is  to  be  found.  Gayle  v. 
Betts,  1  Mod.  227. 


§   449  UPON  A  TRAVERSE  ISSUE  MUST  BE  TENDERED  881 

country."  (0)  It  is  held,  however,  that  there  is  no  material  differ- 
ence between  these  two  modes  of  expression,  and  that  if  ponit 
se  be  submitted  for  petit  quod  inquiratur,  or  vice  versa,  the  mis- 
take is  unimportant.  (/>)  Of  the  tender  of  issue  thus  concluding 
to  the  country,  several  examples  have  already  been  given  in  this 
work,  and  to  these  it  will  now  be  sufficient  to  refer. 

The  form  of  tendering  an  issue  to  be  tried  by  record  is  this : 

PLEA. 

Of  Judgment  Recovered. 
In  Assumpsit. 

And  the  said  defendant,  by  -         -  his  attorney,  says  that  the 

said  plaintiff  heretofore,  to  wit,   in term,   in  the  - 

year  of  the  reign  of  our  lord  the  now  king,  in  the  court  of  our 
said  lord  the  king,  before  the  king  himself,  the  same  court  then 
and  still  being  holden  in  Westminster,  in  the  county  of  Middle- 
sex, impleaded  the  said  defendant  in  a  certain  plea  of  trespass 
on  the  case  on  promises,  to  the  damage  of  the  said  plaintiff  of 
pounds,  for  the  not  performing  the  same  identical  prom- 
ises and  undertakings  in  the  said  declarations  mentioned.  And 
such  proceedings  were  thereupon  had  in  the  same  court  in  that 
plea,  that  afterwards,  to  wit,  in  that  same  term,  the  said  plain- 
tiff by  the  consideration  and  judgment  of  the  said  court  recovered 

in  the  said  plea  against  the  said  defendant pounds  for  the 

damages  which  he  had  sustained,  as  well  by  reason  of  the  not  per- 
forming of  the  same  promises  and  undertakings  in  the  said  dec- 
laration mentioned,  as  for  the  costs  and  charges  by  him  about 
his  suit  in  that  behalf  expended,  whereof  the  said  defendant  was 
convicted,  as  by  the  record  and  proceedings  thereof,  remaining 
in  the  said  court  of  our  said  lord  the  king,  before  the  king  him- 
self, at  Westminster  aforesaid,  more  fully  appears,  which  said 
judgment  still  remains  in  full  force  and  effect,  not  in  the  least  re- 
versed, satisfied  or  made  void.  And  this  the  said  defendant  is 
ready  to  verify  by  the  said  record.  [Wherefore  he  prays  judg- 
ment if  the  said  plaintiff  ought  to  have  or  maintain  his  aforesaid 
action  against  him.] 

REPLICATION. 

And  the  said  plaintiff  says,  that  there  is  not  any  record  of  the 
said  supposed  recovery  remaining  in  the  said  court  of  our  said 

(o)   Heath's    Maxims,   68;    Weltale  v.   Glover,   10   MoH.    166:    Bract. 
57;   Ry.   Plac.   Parl.   146. 

O)  Weltale  v.  Glover,  10  Mod.  166. 

—5 


882  PRODUCTION  OF  ISSUE  §    449 

lord  the  king,  before  the  king  himself,  in  manner  and  form  as  the 
said  defendant  hath  above  in  his  said  plea  alleged.    And  this  he, 
the  said  plaintiff,  is   ready  to   verify,   when,  where   and  in  such 
manner  as  the  court  here  shall  order,  direct  or  appoint. (5) 
*  *  *  *  * 

With  respect  to  the  extraordinary  methods  of  trial,  their  oc- 
currence is  too  rare  to  have  given  rise  to  any  illustration  of  the 
rule  in  question.12  It  refers  chiefly  to  traverses  of  such  matters 
of  fact  as  are  triable  by  the  country;  and,  therefore,  we  find  it 
propounded  in  the  books  most  frequently  in  the  following  form : 
that,  upon  a  negative  and  affirmative,  the  pleading  shall  conclude 
to  the  country;  but  otherwise  with  a  verification. (r)  [Thus 
where  the  declaration  averred  the  giving  of  a  good  and  sufficient 
deed  for  certain  lands,  according  to  the  tenor  of  the  agreement 
between  the  parties,  and  the  plea  negatived  the  fact  almost 
totidem  verbis  and  concluded  with  a  verification,  the  plea  was 
held  bad,  because  it  should  have  concluded  to  the  country.] 

To  the  rule,  in  whatever  form  expressed,  there  is  the  following 
exception:  that  when  new  matter  is  introduced,  the  pleading 
should  always  conclude  with  a  verification.  (^)13 

A  traverse  may  sometimes  involve  the  allegation  of  new  mat- 
ter; and  in  such  instances  the  conclusion  must  be  with  a  verifi- 
cation, and  not  to  the  country.  An  illustration  of  this  is  afforded 

(q)   2   Chitty,  438,  602. 

(r)   Com.  Dig.,  Pleader  (E.  32);  1  Saund.  103,  n.  1. 

(s)  1  Saund.  103,  n.  1,  and  the  authorities  there  cited;  Cornwallis 
v.  Savery,  2  Burr.  772;  Vent.  121;  Vere  v.  Smith,  2  Lev.  5;  Sayre  v. 
Minns,  Cowp.  575. 


12.  The  author  doubtless  refers  to  wager  of  battel  in  which  the  per- 
son   accused   fought   with    his   accuser   under   the    apprehension    that 
Heaven  would  give  the  victory  to   him  who  was  in  the   right;   and 
to  wager  of  law  by  which  a  defendant  in  an  action  of  debt  gave  a 
gage  or  sureties  that  he  would  make  his  law,  that  is  he  would  make  an 
oath  in  open  court  that  he  did  not  owe  the  debt  and  would  at  the 
same  time  bring  eleven  of  his  neighbors   (called  compurgators)  who 
would  swear  that  they  believed  that  he  told  the  truth.     This  was  re- 
garded as  equivalent  to  the  verdict  of  a  jury  who,  formerly  were  the 
witnesses.     If  the  defendant  did  this  he  was  relieved  from  payment 
of  the  debt. 

13.  Va.  F.  &  M.  Ins.  Co.  v.  Saunders,  84  Va.  210,  4  S.  E.  584. 


§   449  UPON  A  TRAVERSE  ISSUE  MUST  BE  TENDERED  883 

by  a  case  of  very  ordinary  occurrence,  viz,  where  the  action 
is  in  debt  on  a  bond  conditioned  for  performance  of  covenants. 
If  the  defendant  pleads  generally,  performance  of  the  covenants, 
and  the  plaintiff  in  his  replication  relies  on  a  breach  of  them,  he 
must  show  specially  in  what  that  breach  consists,  for  to  reply 
generally  that  the  defendant  did  not  perform  them,  would  be 
too  vague  and  uncertain.  His  replication,  therefore,  setting 
forth,  as  it  necessarily  does,  the  circumstances  of  the  breach, 
discloses  new  matter;  and  consequently,  though  it  is  a  direct 
denial  or  traverse  of  the  plea,  it  must  not  tender  issue,  but  must 
conclude  with  a  verification.  So  in  another  common  case,  in  an 
action  of  debt  on  bond  conditioned  to  indemnify  the  plaintiff 
against  the  consequences  of  a  certain  act,  if  the  defendant  pleads 
non  damnificatus,  and  the  plaintiff  replies  alleging  a  damnifica- 
tion, he  must,  on  the  principle  just  explained,  set  forth  the 
circumstances,  and  the  new  matter  thus  introduced  will  make 
a  verification  necessary.  To  these  it  may  be  useful  to  add  another 
example.  The  plaintiff  declared  in  debt,  on  a  bond  conditioned 
for  the  performance  of  certain  covenants  by  the  defendant,  in 
his  capacity  of  clerk  to  the  plaintiff;  one  of  which  covenants 
was  to  account  for  all  the  money  that  he  should  receive.  The 
defendant  pleaded  performance.  The  plaintiff  replied  that  on 
such  a  day  such  a  sum  came  to  his  hands,  which  he  had  not 
accounted  for.  The  defendant  rejoined  that  he  did  account  and 
in  the  following  manner :  That  thieves  broke  into  the  counting- 
house  and  stole  the  money,  and  that  he  acquainted  the  plaintiff 
of  the  fact;  and  he  concluded  with  a  verification.  The  court 
held  that  though  there  was  an  express  affirmative  that  he  did 
account,  in  contradiction  to  the  statement  in  the  replication  that 
he  did  not  account,  yet  that  the  conclusion  with  a  verification 
was  right;  for  the  new  matter  being  alleged  in  the  rejoinder, 
the  plaintiff  ought  to  have  liberty  to  come  in  with  a  surrejoinder, 
and  answer  it  by  traversing  the  robbery. (f) 

The  application,  however,  to  particular  cases,  of  this  exception, 
as  to  the  introduction  of  new  matter,  is  occasionally  nice  and 
doubtful ;  and  it  becomes  difficult  sometimes  to  say  whether 
there  is  any  such  introduction  of  new  matter  as  to  make  the 

(0  Vete  v.  Smith,  2  Lev.  5;  Vent.  121. 


884  PRODUCTION  OP  ISSUE  §    450 

tender  of  issue  improper.  Thus,  in  debt  on  a  bond  conditioned 
to  render  a  full  account  to  the  plaintiff,  of  all  such  sums  of  money 
and  goods  as  were  belonging  to  W.  N.  at  the  time  of  his  death, 
the  defendant  pleaded  that  no  goods  or  sums  of  money  came 
to  his  hands.  The  plaintiff  replied  that  a  silver  bowl,  which 
belonged  to  the  said  W.  N.  at  the  time  of  his  death,  came  to  the 
hands  of  the  defendant,  viz,  on  such  a  day  and  year  :  "and  that 
he  is  ready  to  verify,"  etc.  On  demurrer,  it  was  contended  that 
the  replication  ought  to  have  concluded  to  the  country,  there 
being  a  complete  negative  and  affirmative;  but  the  court  thought 
it  well  concluded,  as  new  matter  was  introduced.  However, 
the  learned  judge  who  reports  the  case  thinks  it  clear  that  the 
replication  was  bad;  and  Mr.  Serjeant  Williams  expresses  the 
same  opinion,  holding  that  there  was  no  introduction  of  new 
matter,  such  as  to  render  a  verification  proper.  (M) 

To  the  same  exception  formerly  belonged  the  case  of  special 
traverses,  which  always  concluded,  until  the  rule  of  Hil.  T.  4 
Wil.  4,  with  a  verification.  But  by  that  rule  it  is  provided  (as 
stated  in  a  former  part  of  this  work)  that  they  should  hence- 
forth conclude  to  the  country. 


III. 
§  450.    Issue,  when  well  tendered,  must  be  accepted.  (v) 

If  issue  be  well  tendered  both  in  point  of  substance  and  in 
point  of  form,  nothing  remains  for  the  opposite  party,  but  to  ac- 
cept or  join  in  it;  and  he  can  neither  demur,  traverse,  nor  plead 
in  confession  and  avoidance. 

The  acceptance  of  the  issue,  in  case  of  a  conclusion  to  the 
country,  i.  e.,  of  trial  by  jury,  may  (as  explained  in  the  first 
chapter)  either  be  added  in  making  up  the  issue,  or  may  be  de- 
livered before  that  transcript  is  made  up.  It  is  in  both  cases 
called  the  similiter;  and  in  the  latter  case  a  special  similiter. 
The  form  of  a  special  similiter  is  thus  :  "And  the  said  plaintiff, 

(M)  Hayman  v.  Gerrard,  1  Saund.  102.  But  see  Cornwallis  v.  Sav- 
ery,  2  Burr.  772.  See,  also,  Sayre  v.  Minns,  Cowp.  575. 

(z')  Bac.  Ab.,  Pleas,  etc.,  p.  363  (5th  Ed.);  Digby  v.  Fitzharbert, 
Hob.  104,  "In  all  pleadings  wherever  a  traverse  was  first  properly 
taken,  the  issue  closed."  Gib.  C.  P.  66. 


§   450        ISSUE,  WHEN  WELL  TENDERED,  MUST  BE  ACCEPTED          885 

(or  "defendant")  as  to  the  plea"  (or  "replication"),  etc.,  "of 
the  said  defendant"  (or  "plaintiff"),  "whereof  he  hath  put  him- 
self upon  the  country"  (or  "whereof  he  hath  prayed  it  may  be  in- 
quired by  the  country"),  "doth  the  like."  The  similiter,  when 
added  in  making  up  the  issue  or  paper-book,  is  simply  this : 
"And  the  said  plaintiff"  (or  "defendant")  "doth  the  like." 

As  the  party  has  no  option  in  accepting  the  issue,  when  well 
tendered,  and  as  the  similiter  may  in  that  case  be  added  for  him, 
the  acceptance  of  the  issue  when  well  tendered  may  be  consid- 
ered as  a  mere  matter  of  form.  It  is  a  form,  however,  which 
should  be  invariably  observed;  and  its  omission  has  sometimes 
formed  a  ground  of  successful  objection,  even  after  verdict. (w) 

The  rule  expresses  that  the  issue  must  be  accepted  only  when 
it  is  well  tendered.  For  if  the  opposite  party  thinks  the  trav- 
erse bad  in  substance  or  in  form,  or  objects  to  the  mode  of 
trial  proposed,  in  either  case  he  is  not  obliged  to  add  the  simili- 
ter, but  may  demur;  and  if  it  has  been  added  for  him,  may 
strike  it  out  and  demur. 

The  similiter,  therefore,  serves  to  mark  the  acceptance  both 
of  the  question  itself  and  the  mode  of  trial  proposed.  It  seems 
originally,  however,  to  have  been  introduced  in  a  view  to  the 
latter  point  only.  The  resort  to  a  jury,  in  ancient  times,  could 
in  general  be  had  only  by  the  mutual  consent,  of  each  party.  It 
appears  to  have  been  with  the  object  of  expressing  such  consent, 
that  the  similiter  was,  in  those  times,  added,  in  drawing  up  the 
record,  and  from  the  record  it  afterwards  found  its  way  into 
the  written  pleadings.  Accordingly,  no  similiter,  or  other  ac- 
ceptance of  issue  is  necessary,  when  recourse  is  had  to  any  of 
the  other  modes  of  trial;  and  the  rule  in  question  does  not  ex- 
tend to  these.  Thus,  when  issue  is  tendered  to  be  tried  by  the 
record,  the  plaintiff  is  entitled  to  consider  the  issue  as  complete 
upon  such  tender  ;(.r)  and  no  acceptance  of  it  on  the  other  side 
is  essential. 

The  rule  in  question  extends  to  an  issue  in  law  as  well  as  an  is- 
sue in  fact;  for  by  analogy  (as  it  would  seem)  to  the  similiter, 

(tf)  Griffith  r.  Crockford,  3  Brod.  &  Bing.  1.  But  see  2  Saund.  319, 
n.  6,  and  Tidd,  956  (8th  Ed.). 

O)   Tipping  v.    Johnson,    3    Bos.    &    Pul.    302. 


886  PRODUCTION  OF  ISSUE;  §  450 

the  party  whose  pleading  is  opposed  by  a  demurrer  is  required 
formally  to  accept  the  issue  in  law  which  it  tenders,  by  the  for- 
mula called  a  joinder  in  demurrer;  of  which  an  example  was 
given  in  the  first  chapter.  However,  it  differs  in  this  respect 
from  the  similiter  that  whether  the  issue  in  law  be  well  or  ill. 
tendered,  that  is,  whether  the  demurrer  be  in  proper  form  or 
not,  the  opposite  party  is  equally  bound  to  join  in  demurrer. 
For  it  is  a  rule,  that  there  can  be  no  demurrer  upon  a  demur- 
rer ;(y)  because  the  first  is  sufficient,  notwithstanding  any  inaccu- 
racy in  its  form,  to  bring  the  record  before  the  court  for  their  ad- 
judication; and  as  for  traverse  or  pleading  in  confession  and 
avoidance,  there  is  of  course  no  ground  for  them,  while  the  last 
pleading  still  remains  unanswered,  and  there  is  nothing  to  op- 
pose but  an  exception  in  point  of  law. 

(31)   Bac.  Ab.,  Pleas,  etc.  (n.),  2. 


CHAPTER  L. 

RULES  WHICH   TEND  TO    SECURE  THE    MATERIALITY  OF  THE 

ISSUE. 

RULE  I. 

§  451.  All  pleadings  must  contain  matter  pertinent  and  material. 

In  a  view  to  the  materiality  of  the  issue,  it  is  of  course  nec- 
essary that  at  each  step  of  the  series  of  pleadings  by  which  it  is 
to  be  produced,  there  should  be  some  pertinent  and  material  al- 
legation or  denial  of  fact.  On  this  subject,  therefore,  a  general 
rule  may  be  propounded  in  the  following  form : 

RULE  I. 

§  451.    All  pleadings  must  contain  matter  pertinent  and 
material. 

Thus,  if  to  an  action  of  assumpsit  against  an  administratrix, 
laying  promises  by  the  intestate,  she  pleads  that  she,  the  defend- 
ant (instead  of  the  intestate)  did  not  promise,  the  plea  is  ob- 
viously immaterial  and  bad. 

***** 

SUBORDINATE  RULES. 

With  respect  to  traverses  in  particular,  this  general  doctrine 
is  illustrated  in  the  books  by  subordinate  rules  of  a  more  special 
kind.  Thus  it  is  laid  down : 

1.  That  traverse  must  not  be  taken  on  an  immaterial  point. (a) 
This  rule  prohibits  first  the  taking  of  a  traverse  on  a  point 
wholly  immaterial.  Thus,  where  to  an  action  of  trespass  for 
assault  and  battery  the  defendant  pleaded  that  a  judgment  was 
recovered,  and  execution  issued  thereupon  against  a  third  per- 
son, and  that  the  plaintiff,  to  rescue  that  person's  goods  from  the 
execution,  assaulted  the  bailiffs ;  and  that  in  aid  of  the  bailiffs, 
and  by  their  command,  the  defendant  molliter  manns  imposuit 

(a)  Com.  Dig.,  Pleader  (R.  8),  (G.  10);  Bac.  Ab.,  Pleas,  etc. 
(H.),  5. 


888  MATERIALITY  OF  ISSUE)  §    451 

upon  the  plaintiff,  to  prevent  his  rescue  of  the  goods,  it  was  hoi- 
den  that  a  traverse  of  the  command  of  the  bailiffs  was  bad.  For 
even  without  their  command,  the  defendant  might  lawfully  in- 
terfere to  prevent  a  rescue,  which  is  a  breach  of  the  peace.1 

So,  by  this  rule  a  traverse  is  not  good  when  taken  on  matter, 
the  allegation  of  which  was  premature,  though  in  itself  not  im- 
material to  the  case.  Thus,  if  in  debt  on  bond,  the  plaintiff 
should  declare  that  at  the  time  of  sealing  and  delivery,  the  de- 
fendant was  of  full  age,  the  defendant  should  not  traverse  this, 
because  it  was  not  necessary  to  allege  it  in  the  declaration; 
though  if  in  fact  he  was  -a  minor,  this  would  be  a  good  subject 
for  a  plea  of  infancy  to  which  the  plaintiff  might  then  well  reply 
the  same  matter,  viz,  that  he  was  of  age. 

Again,  this  rule  prohibits  the  taking  of  a  traverse  of  matter  of 
aggravation;  that  is,  matter  which  only  tends  to  increase  the 
amount  of  damages,  and  does  not  concern  the  right  of  action  it- 
self. Thus,  in  trespass  for  chasing  sheep,  per  quod  the  sheep 
died,  the  dying  of  the  sheep  being  aggravation  only,  is  not  trav- 
ersable.  So  it  is  laid  down  that  in  general,  traverse  is  not  to  be 
taken  on  matter  of  inducement,  that  is,  matter  brought  forward 
only  by  way  of  explanatory  introduction  to  the  main  allega- 
tions;2 but  this  is  open  to  many  exceptions,  for  it  often  happens 
that  introductory  matter  is  in  itself  essential,  and  of  the  sub- 
stance of  the  case,  and  in  such  instances,  though  in  the  nature  of 
inducement,  it  may  nevertheless  be  traversed. 

While  it  is  thus  the  rule  that  traverse  must  not  be  taken  on  an 
immaterial  point,  it  is  on  the  other  hand  to  be  observed,  that 
where  there  are  several  material  allegations,  it  is  in  the  option 
of  the  pleader  to  traverse  which  he  pleases. (b)  Thus,  in  tres- 
pass, if  the  defendant  pleads  that  A.  was  seised  and  demised  to 
him,  the  plaintiff  may  traverse  either  the  seisin  or  the  demise. (c) 

(&)  Com.  Dig.,  Pleader  (G.  10);  Read's  Case,  6  Rep.  24;  Doct. 
PI.  365;  Bac.  Ab.,  Pleas,  etc.  (H.),  5,  p.  392  (5th  Ed.);  Baker  v. 
Blackman,  Cro.  Jac.  682;  Young  v.  Rudd,  Garth.  347;  Young  v.  Rud- 
dle, Salk.  627. 

(c)   Com.  Dig.,   Pleader   (G.  10);   Moore  v.   Pudsey,  Hardr.   317. 


1.  Bowman  v.  Bowman,  153  Ind.  498,  55  N.  E.  422. 

2.  Garland  v.   Davis,  4  How.   131. 


§   451  PLEADINGS  MUST  CONTAIN  PERTINENT  MATTER  889 

Again,  in  trespass,  if  the  defendant  pleads  that  A.  was  seised, 
and  enfeoffed  B.,  who  enfeoffed  C.,  who  enfeoffed  D.,  whose  es- 
tate the  defendant  hath ;  in  this  case  the  plaintiff  may  traverse 
which  of  the  feoffments  he  pleases. (d) 

The  principle  of  this  rule  is  sufficiently  clear,  for  it  is  evident 
that  where  the  case  of  any  party  is  built  upon  several  allegations, 
each  of  which  is  essential  to  its  support,  it  is  as  effectually  de- 
stroyed by  the  demolition  of  any  one  of  these  parts,  as  of  another. 

It  is  also  laid  down, 

2.  That  a  traverse  must  not  be  too  large,  nor  on  the  other  hand 
too  narrozv.(e) 

As  a  traverse  must  not  be  taken  on  an  immaterial  allegation, 
so  when  applied  to  an  allegation  that  is  material,  it  ought  in  gen- 
eral to  take  in  no  more  and  no  less  of  that  allegation  than  is  ma- 
terial. If  it  involves  more,  the  traverse  is  said  to  be  too  large; 
if  less,  too  narrow. 

A  traverse  may  be  too  large  by  involving  in  the  issue,  quantity, 
time,  place,  or  other  circumstances,  which,  though  forming  part 
of  the  allegation  traversed  are  immaterial  to  the  merits  of  the 
cause.  Thus,  in  an  action  of  debt  on  bond  conditioned  for  the 
payment  of  £1550,  the  defendant  pleaded  that  part  of  the  sum 
mentioned  in  the  condition,  to  wit,  £1500,  was  won  by  gaming, 
contrary  to  the  statute  in  such  case  made  and  provided ;  and  that 
the  bond  was  consequently  void.  The  plaintiff  replied  that  the 
bond  was  given  for  a  just  debt,  and  traversed  that  the  £1500  was 
won  by  gaming,  in  manner  and  form  as  alleged.  On  demurrer  it 
was  objected  that  the  replication  wras  ill,  because  it  made  the  pre- 
cise sum  parcel  of  the  issue,  and  tended  to  oblige  the  defendant  to 
prove  that  the  whole  sum  of  £1500  was  won  by  gaming;  whereas 
the  statute  avoids  the  bond,  if  any  part  of  the  consideration  be  on 
that  account.  The  court  was  of  opinion  that  there  was  no  color 
to  maintain  the  replication ;  for  that  the  material  part  of  the  plea 
was.  that  part  of  the  money,  for  which  the  bond  was  given,  was 
won  by  gaming;  and  that  the  words,  "to  wit,  £1500,"  were  only 
form,  of  which  the  replication  ought  not  to  have  taken  any  no- 

(d)  Doct.  PI.  365. 

(e)  1  Saund.  268,  n.  1,  269,  n.  2;  Com.  Dig.  Pleader  (G.  15),  (G.  16). 


890  MATERIALITY  OF  ISSU£  §   451 

tice.  (/)  So  where  the  condition  of  a  bond  was  that  the  obligor 
should  serve  the  obligee  half  a  year,  and  in  an  action  of  debt  on 
the  bond,  the  defendant  pleaded  that  he  had  served  him  half  a 
year  at  D.,  in  the  county  of  K.,  and  the  plaintiff  replied  that  he 
had  not  served  him  half  a  year  at  D.  in  the  county  of  K. ;  this  was 
adjudged  to  be  a  bad  traverse,  as  involving  the  place,  which 
was  immaterial. 

*  *  *  *  * 

[So  where  the  plaintiff  sued  the  defendant  for  cutting  down 
his  mill  dam,  and  the  defendant  pleaded  that  the  plaintiff's  dam 
was  erected  without  authority  of  law,  and  obstructed  a  public  road 
and  ford,  and  that  the  defendant  in  order  to  abate  the  nuisance 
peaceably  cut  down  and  removed  a  part  of  said  dam,  the  replica- 
tion of  the  plaintiff  that  the  mill  dam  did  not  entirely  obstruct 
the  public  road  and  ford,  and  that  citizens  were  not  altogether 
prevented  from  using  the  same,  was  held  to  be  too  large  a  traverse 
as  it  tended  to  raise  an  immaterial  issue  upon  the  extent  of  the 
obstruction  when  any  obstruction  at  all  was  illegal  and  justified 
the  defendant's  conduct.3 

In  an  action  of  debt  against  three  or  more  defendants,  if  the 
breach  alleged  is  that  the  defendants  have  not,  nor  hath  either 
of  them,  paid  the  debt  in  the  declaration  mentioned,  the  breach 
is  too  small,  as  two  of  them  together  may  have  paid  it.  If  the 
breach  is  that  the  defendants  have  not,  nor  hath  any,  nor  hath 
either  of  them,  nor  hath  any  other  person  paid  the  debt  in  the 
declaration  mentioned,  the  breach  is  too  large,  in  that  it  includes 
persons  not  liable  for  the  debt,  though  at  the  present  day  this 
would  probably  be  treated  as  surplusage.] 

Again :  a  traverse  may  be  too  large,  by  being  taken  in  the  con- 
junctive, instead  of  the  disjunctive,  where  it  is  not  material  that 
the  allegation  traversed  should  be  proved  conjunctively.  Thus, 
in  an  action  of  assumpsit,  the  plaintiff  declared  on  a  policy  of 
insurance,  and  averred,  "that  the  ship  insured  did  not  arrive  in 
safety;  but  that  the  said  ship,  tackle,  apparel,  ordnance,  muni- 
tion, artillery,  boat,  and  other  furniture,  were  sunk  and  destroyed 

(/)   Colborne  v.  Stockdale,  Str.  493;  8  Mod.  58,  S.  C. 


8.  Dimmett  v.  Eskridge,  6  Munf.  308. 


§    451  PLEADINGS  MUST  CONTAIN  PERTINENT  MATTER  891 

in  the  said  voyage."  The  defendant  pleaded  with  a  traverse, 
"Without  this,  that  the  said  ship,  her  tackle,  apparel,  ordnance, 
munition,  artillery,  boat,  and  other  furniture,  were  sunk  and  de- 
stroyed in  the  voyage,  in  manner  and  form  as  alleged."  Upon 
demurrer,  this  traverse  was  adjudged  to  be  bad;  and  it  was 
held  that  the  defendant  ought  to  have  denied  disjunctively  that 
the  ship,  or  tackle,  etc.,  was  sunk  or  destroyed ;  because  in  this 
action  for  damages  the  plaintiff  would  be  entitled  to  recover  com- 
pensation for  any  part  of  that  which  was  the  subject  of  insur- 
ance, and  had  been  lost:  whereas  (it  was  said,)  if  issue  had  been 
taken  in  the  conjunctive  form,  in  which  the  plea  was  pleaded, 
"and  the  defendant  should  prove,  that  only  a  cable  or  anchor  ar- 
rived in  safety,  he  would  be  acquitted  of  the  whole. "(g) 

On  the  other  hand,  however,  a  party  may,  in  general,  traverse  a 
material  allegation  of  title  or  estate,  to  the  extent  to  which  it  is 
alleged,  though  it  need  not  have  been  alleged  to  that  extent;  and 
such -traverse  will  not  be  considered  as  too  large. (h)  For  ex- 
ample :  in  an  action  of  replevin,  the  defendant  avowed  the  taking 
of  the  cattle,  as  damage  feasant  in  the  place  in  which,  etc.;  the 
same  being  the  freehold  of  Sir  F.  L.  To  this  the  plaintiff  pleaded, 
that  he  was  seized  in  his  demesne,  as  of  fee,  of  B.  close,  adjoining 
to  the  place  in  which,  etc. ;  that  Sir  F.  L.  was  bound  to  repair 
the  fence  between  B.  close  and  the  place  in  which,  etc. ;  and  that 
the  cattle  escaped,  through  a  defect  of  that  fence.  The  defend- 
ant traversed,  that  the  plaintiff  was  seized  in  his  demesne,  as  of 
fee,  of  B.  close ;  and  on  demurrer,  the  court  was  of  opinion  that 
it  was  a  good  traverse ;  for  though  a  less  estate  than  a  seizin  in 
fee  would  have  been  sufficient  to  sustain  the  plaintiff's  case,  yet  as 
the  plaintiff,  who  should  best  know  what  estate  he  had,  had 
pleaded  a  seizin  in  fee,  his  adversary  was  entitled  to  traverse  the 

title  so  laid. 

***** 

(g)   Goram  v.   Sweeting,  2  Saund.  206. 

(h)  Com.  Dig.,  Pleader  (G.  16);  Sir  Francis  Leke's  Case,  Dy.  365: 
2  Saund.  207a,  n.  24;  Wood  v.  Buddin,  Hob.  119;  Tatem  v.  Perient, 
Yelv.  195;  Carvick  v.  Blagrave,  1  Brod.  &  Bing.  531;  1  Chitty,  586. 
2  Str.  818,  is  apparently  contra;  but  from  the  report  of  the  same 
case,  Ld.  Ray.  1550,  it  may  be  reconciled  with  the  other  authorities. 


CHAPTER  LI. 

RULES  WHICH  TEND  TO  PRODUCE  SINGLENESS  OR  UNITY  IN  THE 

ISSUE. 

RULE   I. 

§  452.  Pleadings   must   not   be    double. 

§  453.  Several    demands. 

§  454.  Several    defendants. 

§  455.  Illustrations. 

§  456.  Several   counts. 

§  457.  Several    pleas. 

§  458.  Several    replications. 

RULE     II. 

§  459.  It  is  not  allowable  both  to  plead  and  to  demur  to  the  same  matter. 

RULE  I. 
§  452.    Pleadings  must  not  be  double. (a)1 

This  rule  applies  both  to  the  declaration  and  subsequent  plead- 
ings. Its  meaning  with  respect  to  the  former  is  that  the  declara- 
tion must  not,  in  support  of  a  single  demand,  allege  several 
distinct  matters,  by  any  one  of  which  that  demand  is  sufficiently 
supported.  With  respect  to  the  subsequent  pleadings,  the  mean- 
ing is  that  none  of  them  is  to  contain  several  distinct  answers  to 
that  which  preceded  it;  and  the  reason  of  the  rule  in  each  case 
is  that  such  pleading  tends  to  several  issues  in  respect  of  a  single 
claim,  (b) 

The  rule,  it  may  be  observed,  in  its  terms  points  to  doubleness 
only;  as  if  it  prohibited  only  the  use  of  two  allegations,  or  an- 
swers, of  this  description;  but  its  meaning,  of  course,  equally 

(a)  Com.  Dig.,  Pleader  (c.  33),  (E.  2),  (F.  16);  Bac.  Ab.,  Pleas, 
etc.  (K.);  Humphreys  v.  Bethily,  2  Vent.  198,  222;  Doct.  PI.  135. 

(&)  La  cause  est  pur  ceo,  que  deux  issues  purroient  estr  pris  sur  les 
plees.  Per  Fincheden,  40  Ed.  3,  45.  See  also,  15  Ed.  4,  1. 


1.  See  ante,  §   199. 


§    452  PLEADINGS  MUST   NOT  BE  DOUBLE  893 

extends  to  the  case  of  more  than  two,  the  term  doubleness,  or 
duplicity,  being  applied  (though  with  some  inaccuracy)  to  either 
case. 

***** 

[The  following  are  examples  of  duplicity  in  a  declaration : 
The  plaintiff  in  the  same  count  of  his  declaration  charged  negli- 
gence on  the  part  of  defendant  in  the  employment  of  its  serv- 
ants, and  also  negligence  on  the  part  of  the  servants  themselves, 
thus  stating  two  separate  and  distinct  causes  of  action  in  a  single 
count.2  In  an  action  of  trespass  the  plaintiff  claimed  damages  in 
the  same  count  for  trespassing  on  certain  land  in  his  possession, 
and  for  assaulting  and  beating  his  person,  "on  or  about"  a  spec- 
ified date.  It  was  held  that  the  count  was  bad  for  duplicity,  that 
it  failed  to  show  that  the  two  trespasses  were  the  same  transac- 
tion.3 • 

The  plaintiff  declared  in  slander  in  a  single  count  upon  three 
sets  of  words  spoken  at  different  times  on  the  same  day  to  the 
same  persons  concerning  the  plaintiff's  intemperance,  his  insol- 
vency, and  his  failure  to  prevent  boys  under  his  control  from 
stealing  apples.  The  count  was  held  bad  for  duplicity.  So  also 
it  has  been  held  that  a  count  averring  both  simple  negligence  and 
wanton  and  wilful  wrong  is  bad  for  duplicity.4 

The  following  is  an  example  of  duplicity  in  a  plea  in  abate- 
ment: A  plea  in  abatement  of  the  writ  set  forth  (a)  That  one 
H.,  a  co-defendant  of  the  G  company,  was  not  a  citizen  of  the 
city  of  L,  and  hence,  that  the  writ  against  the  G  company  could 
not  be  sent  out  of  the  city  for  service,  and  (b)  that  the  persons 
on  whom  service  was  made  were  not  agents  of  the  G  company. 
It  was  held  that  the  plea  was  bad  for  duplicity,  as  it  stated  two 
distinct  and  separate  defences,  either  of  which  if  true  would 
necessitate  a  finding  in  favor  of  the  defendant  tendering  the 
plea.5 

The  following  is  an  example  of  duplicity  in  a  plea  in  bar:  In 
an  action  of  debt  on  a  bond  the  defendant  set  up  two  distinct 

2.  Southern   R.   Go.  v.   Simmons,  105  Va.   651,  55   S.   E.  459. 

3.  Henry   v.    Carleton,    113    Ala.    636,    21    South.    225. 

4.  Anniston  Electric  Co.  v.   Rosen,  159  Ala.   195,  48   South.  798. 

5.  Guarantee  Co.  v.   First   Nat.   Bank,  95  Va.  480,  28   S.   E.  909. 


894  SINGLENESS  OP  ISSUE  §§  453-454 

grounds  of  defence  in  a  single  plea,  (a)  breach  of  warranty,  and, 
(b)  partial  failure  of  consideration.  The  plea  was  held  bad  for 
duplicity.6 

Duplicity  occurs  only  where  two  or  more  causes  of  action  are 
set  up  in  a  single  count  of  a  declaration,  or  two  or  more  defences 
are  set  up  in  a  single  plea.  It  is  easily  avoided  by  setting  out  the 
different  causes  of  action  in  separate  counts  of  the  declaration, 
or  setting  up  the  different  defences  by  separate  pleas.  Duplicity 
is  a  matter  of  form  only,  and  could  be  taken  advantage  of,  even 
at  common  law,  only  by  special  demurrer.  In  Virginia  special  de- 
murrers have  been  abolished  except  as  to  pleas  in  abatement,  and 
it  has  been  doubted  whether  the  objection  of  duplicity  to  a  plea 
in  bar  can  be  raised -at  all.  It  has  been  distinctly  held  that  du- 
plicity is  not  a  ground  of  objection  to  a  declaration.7  It  has  been 
pointed  out,  however,  that  the  objection  on  account  of  duplicity 
to  a  plea,  or  other  subsequent  pleading,  may  be  made  by  a  mo- 
tion to  exclude  when  offered,  or  to  strike  out  after  it  has  been 
received.8] 

§  453.    Several  demands. 

The  object  of  this  rule  being  to  enforce  a  single  issue,  upon  a 
single  subject  of  claim,  admitting  of  several  issues,  where  the 
claims  are  distinct,  the  rule  is  accordingly  carried  no  further  than 
this  in  its  application.  The  declaration  therefore  may,  in  support 
of  several  demands,  allege  as  many  distinct  matters  as  are  re- 
spectively applicable  to  each. 


§  454.    Several  defendants. 

Again,  if  there  be  several  defendants,  the  rule  against  duplicity 
is  not  carried  so  far  as  to  compel  each  of  them  to  make  the  same 
answer  to  the  declaration.  Each  defendant  is  at  liberty  to  use 
such  plea  as  he  may  think  proper  for  his  own  defence,  and  they 

6.  Cunningham  v.   Smith,  10   Gratt.  255. 

7.  Southern  Ry.  Co.  v.  Simmons,  105  Va.  651,  55  S.  E.  459. 

8.  Ante,  §   199;    C.   &   O.  v.   Rison,  99  Va.   18,  37   S.   E.  420,   6  Va. 
Law   Reg.   655,  and  note. 


§    455  ILLUSTRATIONS  895 

may  either  join  in  the  same  plea  or  sever,  at  their  discretion. (c) 
But  if  the  defendants  have  once  united  in  the  plea,  they  cannot 
afterwards  sever  at  the  rejoinder,  or  other  later  stage  of  the 
pleading. 

Where  in  respect  of  several  subjects  or  several  defendants  a 
severance  has  thus  taken  place  in  the  pleading,  this  may  of  course 
lead  to  a  corresponding  severance  in  the  whole  subsequent  series ; 
and  (as  the  ultimate  effect)  to  the  production  of  several  issues. 
And  where  there  are  several  issues,  they  may  respectively  be 
decided  in  favor  of  different  parties,  and  the  judgment  will  fol- 
low the  same  division. 

Such  being  in  general  the  nature  of  duplicity,  the  following 
rules  or  points  of  remark  will  tend  to  its  further  illustration. 

§  455.     Illustrations. 

1.  A   pleading  will  be   double   that  contains  several  answers, 
whatever  be  the  class  or  quality  of  the  ansu'er.    Thus,  it  will  be 
double  by  containing  several  matters  in  abatement,  or  several 
matters  in  bar;(d)    or  by  containing  one  matter  in  abatement 
and  another  in  bar.(^)     So  a  pleading  will  be  double  by  contain- 
ing several  matters  in  confession  and  avoidance,  or  several  an- 
swers by  way  of  traverse ;  or    by    combining   a  traverse  with  a 
matter  in  confession  and  avoidance.  (/) 

2.  Matter  may  suffice  io  make  a  pleading  double  though  it  be 
ill-pleaded.    Thus  in  trespass  for  assault  and  battery,  the  defend- 
ant pleaded  that  he  committed  the  trespasses  in  the  moderate  cor- 
rection of  the  plaintiff  as  his  servant;   and  further  pleaded,  that 
since  that  time  the  plaintiff  had  discharged  and  released  to  him 
the  said  trespasses,  without  alleging,  as  he  ought  to  have  done,  a 
release  under  seal.    The  court  held  that  this  plea  was  double,  the 

(c)  Co.  Litt.  303a.     It  is  said,  however,  Essengton  v.  Boucher,  Hob. 
245,  that  they  cannot  sever  in  dilatory  pleas.     Sed  qu.?     See  Cupple- 
dick  v.   Terwhit,    Hob.   250. 

(d)  Com.  Dig.,  Pleader  (E.  2);  and  see  the  cases  already  cited  on 
the  subject  of  duplicity. 

O)  Scmb.  Com.  Dig.,  Pleader  (E.  2);   Bleeke  v.  Grove,  1   Sid.  176. 
(/)   Com.  Dig.,  Pleader  (E.  2);  Bac.  Ab.,  Pleas,  etc.   (K.);  and  see 
the   cases  already  cited. 


896  SINGLENESS  OF  ISSUE  §    455 

moderate  correction  and  the  release  being  each  a  matter  of  de- 
fence; and  though  the  release  was  insufficiently  pleaded,  yet  as 
it  was  a  matter,  that  a  material  issue  might  have  been  taken  upon, 
it  sufficed  to  make  the  plea  double,  (g) 

[In  an  action  against  the  Comptroller  of  Public  Accounts  of 
Florida  and  his  sureties  on  his  official  bond  for  a  breach  of  the 
condition  of  the  bond,  the  defendants  pleaded  the  performance  of 
all  his  duties  as  comptroller,  and  also  the  tender  in  warrants  on 
the  treasurer  of  the  Territory  of  Florida.  It  was  held  that  this 
plea  was  double,  notwithstanding  the  fact  that  the  defence  of 
tender  was  not  well  pleaded,  in  as  much  as  the  treasury  notes 
mentioned  were  not  legal  tenders.  In  other  words,  that  the  tender 
was  material  and  rendered  the  plea  double,  although  ill- 
pleaded.]9 

On  the  other  hand,  it  seems  that: 

3.  Matters  immaterial  cannot  operate  to  make  a  pleading 
double. (h}  Thus,  in  an  action  by  the  executors  of  J.  G. 
on  a  bond  conditioned  that  the  defendant  should  warrant 
to  J.  G.  a  certain  meadow,  the  defendant  pleaded  that  the 
said  meadow  was  copyhold  of  a  certain  manor,  and  that 
there  is  a  custom  within  the  manor  that  if  the  customary 
tenants  fail  in  payment  of  their  rents  and  services,  or  com- 
mit waste,  then  the  lord  for  the  time  being  may  enter  for  for- 
feiture; and  that  the  said  J.  G.,  during  his  life  peaceably  en- 
joyed the  meadow;  which  descended  after  his  death  to  one  B.. 
his  son  and  heir;  who,  of  his  own  wrong,  entered  without  the  ad- 
mission of  the  lord,  against  the  custom  of  the  manor ;  and  because 
three  shillings  of  rent  were  in  arrear  on  such  a  day,  the  lord  en- 
tered into  the  meadow  as  into  lands  forfeited.  On  demurrer  it 
was  objected,  among  other  things,  that  the  plea  was  double,  be- 
cause in  showing  the  forfeiture  to  have  occurred  by  the  heir's 
own  wrongful  act  two  several  matters  are  alleged :  First,  that 

(g)   Bac.  Ab.,   Pleas,  etc.    (K.),  2;   Bleeke  v.   Grove,  Sid.   175. 

(h)  Bac.  Ab.,  Pleas,  etc.  (K.),  2;  1  Hen.  7,  16;  Countess  of  North- 
umberland'^ Case,  5  Rep.  98a;  Executors  of  Grenelefe,  Dyer,  42b.; 
Doct.  PI.  138. 


9.  Bemis   v.    State,   3    Florida  16. 


§    455  ILLUSTRATIONS  .    897 

he  entered  without  admission,  against  the  custom ;  secondly,  that 
three  shillings  of  rent  were  in  arrear.  But  the  judges  held,  that 
the  only  sufficient  cause  of  forfeiture  was  the  non-payment  of 
rent;  that  there  being  no  custom  alleged  for  forfeiture  in  respect 
of  entry  without  admission,  the  averment  of  such  entry  was  mere 
surplusage,  and  could  not  therefore  avail  to  make  the  plea 
double,  (i)  It  is,  however,  to  be  observed,  that  the  plea  seems  to 
rely  on  the  non-payment  of  the  rent  as  the  only  ground  of  forfei- 
ture ;  for  it  alleges,  that  "because  three  shillings  of  the  rent  were 
in  arrear  the  lord  entered,"  and  the  court  noticed  this  circum- 
stance. The  case,  therefore,  does  not  explicitly  decide  that  where 
two  several  matters  are  'not  only  pleaded,  but  relied  upon,  th'e 
immateriality  of  one  of  them  shall  prevent  duplicity;  but  the 
manner  in  which  the  judges  express  themselves  seems  to  show 
that  the  doctrine  goes  to  that  extent ;  and  there  are  other  author- 
ities the  same  way.(/) 

This  doctrine  that  a  plea  may  be  rendered  double  by  matter 
ill-pleaded,  but  not  by  immaterial  matter,  quite  accords  with  the 
object  of  the  rule  against  duplicity,  as  formerly  explained.  That 
object  is  the  avoidance  of  several  issues.  Now  whether  a  matter 
be  well  or  ill-pleaded,  yet  if  it  be  sufficient  in  substance,  so  that 
the  opposite  party  may  go  to  issue  upon  it,  if  he  chooses  to  plead 
over,  without  taking  the  formal  objection,  such  matter  tends  to 
the  production  of  a  separate  issue ;  and  is  on  that  ground  held  to 
make  the  pleading  double.  On  the  other  hand,  if  the  matter  be 
immaterial,  no  issue  can  properly  be  taken  upon  it :  it  does  not 
tend,  therefore,  to  a  separate  issue,  nor,  consequently,  fall  within 
the  rule  against  duplicity. 

4.  No  matter  will  operate  to  make  a  pleading  double,  that  is 
pleaded  only  as  necessary  inducement  to  another  allegation. 
Thus,  it  may  be  pleaded  without  duplicity  that  after  the  cause  of 
action  accrued,  the  plaintiff  (a  woman)  took  husband,  and  that 
the  husband  afterwards  released  the  defendant;  for  though  the 
coverture  is  itself  a  defence,  as  well  as  the  release,  yet  the  aver- 
ment of  the  coverture  is  a  necessary  introduction  to  that  of  the 

(0   Executors   of   Grenelefe,    Dyer,   42,   b. 
(;)    Bac.   Ab.,   Pleas,   etc.    (K.),  2. 

—57 


898  SINGLENESS  OF  ISSUE  §   455 

release.  (k)  This  exception  to  the  general  rule  is  prescribed  by 
an  evident  principle  of  justice;  for  the  party  has  a  right  to  rely 
on  any  single  matter  that  he  pleases  in  preference  to  another,  as 
in  this  instance,  on  the  release  in  preference  to  the  coverture ;  but 
if  a  necessary  inducement  to  the  matter  on  which  he  relies,  when 
itself  amounting  a  defence,  were  held  to  make  his  pleading  dou- 
ble, the  effect  would  be  to  exclude  him  from  this  right,  and  com- 
pel him  to  rely  on  the  inducement  only. 

5.  No  matters,  hozvever  multifarious,  will  operate  to  make  a 
pleading  double,  that  together  constitute  but  one  connected  prop- 
osition or  entire  point. 

*  *  *  *  * 

[Thus  in  an  action  of  debt  to  recover  the  price  of  fertilizer,  the 
defendant  filed  a  special  plea  by  way  of  set-off  in  which  he 
averred  ( 1 )  that  the  plaintiff  warranted  the  fertilizer  to  be  as 
good  a  fertilizer  and  as  well  adapted  to  potatoes  as  any  other  on 
the  market  at  a  like  price,  and  (2)  that  the  fertilizer  was  as  good 
a  potato  special  as  any  other  on  the  market.  It  was  objected  that 
the  plea  was  bad  for  duplicity,  but  it  was  held  that  the  matters  al- 
leged constituted  but  one  entire  and  indivisible  contract  of  war- 
ranty, and  that  it  would  have  been  bad  pleading  to  split  up  the 
causes  of  action.  The  above  rule  of  the  text  was  cited.10  Again, 
a  plea  to  the  jurisdiction  negativing  every  ground  of  jurisdiction 
given  by  the  statute  was  objected  to  as  bad  for  duplicity;  it  was 
held  that  not  only  was  the  plea  not  bad,  but  the  averments  were 
essential  in  order  to  make  the  plea  good.11  In  an  action  on  an  in- 
surance policy  the  defendant  pleaded  a  breach  of  warranty  of  the 
value  of  the  property  insured.  The  plaintiff  replied  that  she  esti- 
mated the  cost,  that  the  company's  agent  then  and  there  inspected 
the  property,  was  as  well  informed  as  to  its  value  as  she  was,  con- 
curred in  her  estimate  and  inserted  it  in  her  application.  The 
defendant  objected  to  this  replication  as  being  bad  for  duplicity, 

(k)  Bac.  Ab.,  Pleas,  etc.  (K.),  2;  Com.  Dig.,  Pleader  (E.  2).  See 
also,  Rowles  v.  Rusty,  4  Bing.  428. 


10.  Reese  'v.   Bates,  94  Va.   221,   26   S.   E.   865. 

11.  Deatrick  v.  Insurance  Co.,  107  Va.  602,  59  S.   E.  489. 


§   455  ILLUSTRATIONS  899 

but  it  was  held  that  the  matters  stated,  though  multifarious,  con- 
stituted but  one  connected  proposition  or  entire  point,  and  hence 
did  not  operate  to  make  the  pleading  double.]12 

6.  "The  general  issue  as  construed  has  become  in  truth  a  dou- 
ble plea.  In  some  cases  the  general  issues  appear  to  partake  of 
the  nature  of  these  cumulative  traverses.  For  some  of  them  are 
so  framed  as  to  convey  a  denial,  not  of  any  particular  fact,  but 
generally  of  the  whole  matter  alleged — as  not  guilty,  in  trespass 
or  trespass  on  the  case,  and  nil  debet,  in  debt.  And  in  assumpsit 
the  case  is  the  same  in  effect,  according  to  a  relaxation  of  prac- 
tice formerly  explained,  by  which  the  defendant  is  permitted,  un- 
der the  general  issue,  in  that  action,  to  avail  himself  (with  some 
few  exceptions)  of  any  matter  tending  to  disprove  his  liability. 
The  consequence  is  that  under  these  general  issues  the  defendant 
has  the  advantage  of  disputing,  and  therefore  of  putting  the  plain- 
tiff to  the  proof  of,  every  averment  in  the  declaration.  Thus,  by 
pleading  not  guilty  in  trespass  quare  clausum  fregit,  he  is  enabled 
to  deny  at  the  trial  both  that  the  land  was  the  plaintiff's  and  that 
he  committed  upon  it  the  trespass  in  question,  and  the  plaintiff 
must  establish  both  these  points  in  evidence.  Indeed,  besides  this 
advantage  of  double  denial,  the  defendant  obtains,  under  the  gen- 
eral issue  in  assumpsit  and  other  actions  of  trespass  on  the  case, 
the  advantage  of  double  pleading  in  confession  and  avoidance. 
For  as,  upon  the  principles  formerly  explained,  he  is  allowed  in 
these  actions  to  bring  forward,  upon  the  general  issue,  almost  any 
matters  (though  in  the  nature  of  confession  and  avoidance) 
which  tend  to  disprove  his  debt  or  liability,  so  he  is  not  limited 
(as  he  would  be  in  special  pleading)  to  a  reliance  on  any  single 
matter  of  this  description,  but  may  set  up  any  number  of  these 
defences.  While  such  is  the  effect  of  many  of  the  general  issues 
in  mitigating  or  evading  the  rule  against  duplicity,  the  remark 
does  not  apply  to  all.  Thus  the  general  issue  of  non  est  factum 
raises  only  a  single  question,  namely,  whether  the  defendant  exe- 
cuted a  valid  and  genuine  deed  such  as  is  alleged  in  the  declara- 
tion. The  defendant  may,  under  this  plea,  insist  that  the  deed 
was  not  executed  by  him,  or  that  it  was  executed  under  circum- 

12.  Virginia  Fire  &  Marine  Ins.  Co.  v.  Saunders,  86  Va.  969,  11 
S.  E.  794. 


900  SINGLENESS  OF  ISSUE;  §  456 

stances  which  annul  its  effect  as  a  deed,  but  can  set  up  no  other 
kind  of  defence."13 

§  456.    Several  counts. 

The  rule  against  duplicity  in  pleading  being  now  explained,  it 
is  necessary  in  the  next  place  to  advert  to  certain  modes  of  prac- 
tice, by  which  the  effect  of  that  rule  is  materially  qualified. 
These  are  the  use  of  several  counts  and  the  allowance  of  several 
pleas;  the  former  being  grounded  on  ancient  practice,  the  latter 
on  the  stat.  4  Anne,  c.  16. 

First  shall  be  considered  the  subject  of  several  counts. 

Where  a  plaintiff  has  several  distinct  causes  of  action,  he  is  al- 
lowed to  pursue  them  cumulatively  in  the  same  suit,  subject  to 
certain  rules  which  the  law  prescribes  as  to  joining  such  demands 
only  as  are  of  similar  quality  or  character. (/)  Thus,  he  may  join 
a  claim  of  debt  on  bond  with  a  claim  of  debt  on  simple  contract, 
and  pursue  his  remedy  for  both  by  the  same  action  of  debt.  So 
if  several  distinct  trespasses  have  been  committed,  these  may  all 
form  the  subject  of  one  declaration  in  trespass,  but,  on  the  other 
hand,  a  plaintiff  cannot  join  in  the  same  suit  a  claim  of  debt  on 
bond,  and  a  complaint  of  trespass ;  these  being  dissimilar  in  kind. 
Such  different  claims  or  complaints,  when  capable  of  being  joined, 
constitute  different  parts  or  sections  of  the  declarations ;  and 
are  known  in  pleading  by  the  description  of  several  counts. 

[Joinder  of  Actions. — The  general  rule  is  that  demands  against 
the  same  party  may  be  joined  when  they  are  all  of  the  same  na- 
ture and  the  same  judgment  has  to  be  given  in  each,  notwithstand- 
ing the  pleas  may  be  different.  Each  demand,  however,  must  be 
set  out  in  a  separate  count  in  the  declaration.  Thus,  several  de- 
mands in  the  nature  of  debt  may  be  joined,  although  some  of  the 
evidences  of  debt  are  under  seal  and  others  not.  Several  actions 
of  tort  may  be  joined  in  the  same  action  of  trespass,  but  tort  and 
contract  cannot  be  united,  nor  can  several  species  of  action  be 
united  in  one  declaration,  although  they  may  all  be  ex  contractu 
or  ex  delicto ;  thus,  at  common  law  trespass  could  not  be  united 

(/)  Upon  this  subject,  see  Bac.  Ab.,  Actions  (c). 


13.  Andrews  Stephen's  Pleading  (2nd   Ed.),  §   183. 


§   456  SEVERAL  COUNTS  901 

with  case,  but  in  Virginia  it  is  declared  by  statute  that  wherever 
trespass  would  like  case  may  be  brought.14  Common  law  and 
statutory  slander  may  be  united  in  the  same  declaration  but  can- 
not be  blended  in  the  same  count,  and  if  it  is  intended  to  sue  un- 
der the  statute,  as  for  insult,  it  must  in  some  way  be  made  to  ap- 
pear in  the  declaration  that  the  plaintiff  is  proceeding  under  the 
statute.15  It  may  also  be  observed  that  where  the  causes  of  ac- 
tion might  have  been  united  in  a  single  action,  but  the  plaintiff 
has  brought  several  actions,  he  may  be  compelled  to  consolidate 
them,  and  to  pay  the  extra  costs. 

As  the  same  judgment  must  be  given  in  all,  it  is  manifest  that 
demands  against  a  party  personally  cannot  be  united  with  de- 
mands against  him  in  a  fiduciary  capacity,  as  the  judgment  in  one 
case  would  be  a  personal  judgment,  and  in  the  other,  to  be  paid 
out  of  the  estate  of  the  decedent  in  the  hands  of  the  defendant  to 
be  administered.  While  it  is  provided  by  §  2855  of  the  Virginia 
Code  that  the  personal  representative  of  a  deceased  partner,  or 
other  joint  obligor,  may  be  sued  in  the  same  manner  as  such  rep- 
resentative might  have  been  charged,  if  those  bound  jointly,  or  as 
partners  had  been  bound  severally  as  well  as  jointly,  otherwise 
than  as  partners,  they  cannot  be  sued  together  in  separate  counts 
in  the  same  declaration  in  an  ordinary  action  at  law,  but  separate 
actions  must  be  brought  against  each.  This,  however,  is  not  true 
if,  instead  of  a  common  law  action,  the  proceeding  be  by  motion, 
for  it  is  also  provided  by  statute  that  a  person  entitled  to  obtain 
judgment  for  money  on  motion,  may,  as  to  any,  or  the  personal 
representatives  of  any  person  liable  for  such  money,  move  sev- 
erally against  each,  or  jointly  against  all,  or  jointly  against  any 
intermediate  number  *  *  *  provided  that  judgment  against 
such  personal  representatives  shall  in  all  cases  be  several.]16 

In  order  to  give  the  unlearned  reader  an  exact  idea  of  the 
nature  of  several  counts,  it  may  be  useful  to  lay  before  him  an 
example. 

If  the  plaintiff  has  to  complain  of  several  assaults,  he  may  thus 
frame  his  declaration : 

14.  Code,   §   2901. 

15.  Hogan  z-.  Wilmoth,   16  Gratt.  80. 

16.  Code,    §    3212. 


902  SINGLENESS  OF  ISSUE  §    456 

DECLARATION    IN   TRESPASS. 

For  an  Assault  and  Battery. 

In  the  King's  Bench. 

The day  of  -       — ,  in  the  year  of  our 

Lord  -        — . 

-  to  wit,  A.  B.  (the  plaintiff  in  this  suit,)  by  E.  F.,  his 
attorney,  complains  of  C.  D.  (defendant  in  this  suit,)  who  has 
been  summoned  to  answer  the  said  plaintiff  in  an  action  of  tres- 
pass :  For  that  the  said  defendant  heretofore,  to  wit,  on  the  — — 
day  of  -  — ,  in  the  year  of  our  Lord,  -  — ,  with  force  and  arms, 
made  an  assault  upon  the  said  plaintiff,  and  beat,  wounded,  and 
ill-treated  him,  so  that  his  life  was  despaired  of.  And  also  for 
that  the  said  defendant  heretofore  to  wit,  on  the  day  and  year 
aforesaid,  with  force  and  arms,  at  -  -  aforesaid,  in  the  county 
aforesaid,  made  another  assault  upon  the  said  plaintiff,  and  again 
beat,  wounded,  and  ill-treated  him,  so  that  his  life  was  despaired 
of,  and  other  wrongs  to  him  then  and  there  did,  against  the  peace 
of  our  said  lord  the  king,  and  to  the  damage  of  the  said  plaintiff 
of  -  -  pounds ;  and  therefore  he  brings  his  suit,  etc. 

When  several  counts  are  thus  used  the  defendant  may,  accord- 
ing to  the  nature  of  the  defence,  demur  to  the  whole,  or  plead  a 
single  plea  applying  to  the  whole ;  or  may  demur  to  one  count, 
and  plead  to  another,  or  plead  a  several  plea  to  each  count ;  and 
in  the  two  latter  cases  the  result  may  be  a  corresponding  sever- 
ance in  the  subsequent  pleadings,  and  the  production  of  several 
issues.  But  whether  one  or  more  issues  be  produced,  if  the 
decision,  whether  in  law  or  fact,  be  in  the  plaintiff's  favor  as 
to  any  one  or  more  counts,  he  is  entitled  to  judgment  pro  tanto, 
though  he  fail  as  to  the  remainder. 

It  is  to  be  observed  that  several  causes  of  action  do  not  always 
form  the  subject  of  several  counts,  but  are  sometimes  thrown, 
for  the  sake  of  brevity  and  convenience,  into  one ;  and  in  the 
actions  of  debt  and  assumpsit  the  claims  of  most  frequent  occur- 
rence, viz,  those  for  goods  sold,  for  work  done,  for  money  lent, 
for  money  paid,  for  money  received  to  the  use  of  the  plaintiff, 
for  money  due  on  an  account  stated,  are  always  condensed  (when 
they  occur  in  the  same  action)  into  a  single  count,  pursuant  to  a 
form  lately  promulgated  by  rule  of  court. 


§  457  SEVERAL  PLEAS  903 

§  457.    Several  Pleas.17 

The  next  subject  for  consideration  is  that  of  several  pleas. 

It  has  been  already  stated,  that  the  rule  against  duplicity  does 
not  prevent  a  defendant  from  giving  distinct  answers  to  dif- 
ferent complaints  on  the  part  of  the  plaintiff.  To  several  counts, 
or  to  distinct  parts  of  the  same  count,  he  may  therefore  plead 
several  pleas,  viz,  one  to  each.  Thus,  in  an  action  of  trespass 
for  two  assaults  and  batteries,  he  may  plead  as  to  the  first  count 
not  guilty,  and  as  to  the  second  the  statute  of  limitations,  viz, 
that  he  was  not  guilty  within  four  years ;  and  the  following  is  an 
example  of  the  form  in  which  this  may  be  done : 

PLEAS. 

In  Trespass  for  Assault  and  Battery. 

And  the  said  defendant,  by  — —  his  attorney,  as  to  the  first 
count  of  the  said  declaration  says,  that  he  is  not  guilty  of  the  said 
trespass  therein  mentioned,  or  any  part  thereof,  in  manner 
and  form  as  the  said  A.  B.  hath  above  thereof  complained.  And 
of  this  the  said  C.  D.  puts  himself  upon  the  country.  And  as  to 
the  second  count  of  the  said  declaration,  the  said  defendant  says, 
that  the  said  plaintiff  ought  not  to  have  or  maintain  his  aforesaid 
action  thereof  against  him,  because  he  says  that  he  the  said  de- 
fendant was  not,  at  any  time  within  four  years  next  before  the 
commencement  of  this  suit,  guilty  of  the  said  trespasses  in  the 
second  count  mentioned,  or  any  part  thereof,  in  manner  and 
form  as  the  said  plaintiff  hath  above  complained.  And  this  the 
said  defendant  is  ready  to  verify.  Whereupon  he  prays  judg- 
ment if  the  said  plaintiff  ought  to  have  or  maintain  his  aforesaid 
action  thereof  against  him. 

Nor  is  the  defendant  in  pleading  different  pleas  to  different 
parts  of  the  declaration,  confined  to  pleas  of  the  same  kind.  Thus 
it  is  laid  down,  that  he  may  plead  in  abatement  to  part  and  in 
bar  to  the  residue. 

But  it  may  also  happen  that  a  defendant  may  have  several  dis- 
tinct answers  to  give  to  the  same  claim  or  complaint.  Thus  to  an 
action  of  trespass  for  two  assaults  and  batteries,  he  may  have 
ground  to  deny  both  the  trespass,  and  also  to  allege  that  they 

17.  For  the  present  state  of  the  law  in  Virginia,  see  ante,  §  198. 


904  SINGLENESS  OP  ISSUE  §  457 

were  neither  of  them  committed  within  four  years.  Anterior, 
however,  to  the  regulation  which  will  be  presently  mentioned,  it 
was  not  competent  for  him  to  plead  these  several  answers  to  both 
trespasses,  as  that  would  have  been  an  infringement  of  the  rule 
against  duplicity.  The  defendant  was  therefore  obliged  to  elect 
between  his  different  defences,  where  more  than  one  thus  hap- 
pened to  present  themselves,  and  to  rely  on  that,  which  in  point 
of  law  or  fact  he  might  deem  most  impregnable.  But  as  a  mis- 
take in  that  selection  might  occasion  the  loss  of  the  cause,  con- 
trary to  the  real  merits  of  the  case,  this  restriction  against  the 
use  of  several  pleas  to  the  same  matter,  after  being  for  ages 
observed  in  its  original  severity,  was  at  length  considered  as 
contrary  to  the  true  principles  of  justice,  and  was  accordingly 
relaxed  by  legislative  enactment.  The  stat.  4  Anne,  c.  16,  s.  4, 
provides,  that  "it  shall  be  lawful  for  any  defendant  or  tenant  in 
any  action  or  suit,  or  for  any  plaintiff  in  replevin  in  any  court 
of  record,  with  leave  of  the  court  to  plead  as  many  several  mat- 
ters thereto  as  he  shall  think  necessary  for  his  defence."  Under 
this  act  the  course  is  for  the  defendant,  if  he  wishes  to  plead 
several  matters  to  the  same  subject  of  demand  or  complaint,  to 
apply  previously  for  a  rule  of  court  permitting  him  to  do  so,  and 
upon  this,  a  rule  is  accordingly  drawn  up  for  that  purpose.  The 
form  of  pleading  several  pleas,  where  leave  is  thus  granted,  will' 
appear  by  the  following  example : 

PLEAS. 
In  Trespass  for  Assault  and  Battery. 

And  the  said  defendant,  by  —  -  his  attorney,  says,  that  he  is 
not  guilty  of  the  said  trespasses  above  laid  to  his  charge,  or  any 
part  thereof,  in  manner  and  form  as  the  said  plaintiff  hath  above 
thereof  complained.  And  of  this  the  said  defendant  puts  himself 
upon  the  country.  And  for  a  further  plea  in  this  behalf,  the  said 
defendant  says,  that  he,  the  said  defendant,  was  not  at  any  time 
within  four  years  next  before  the  commencement  of  this  suit, 
guilty  of  the  said  trespasses  in  the  said  declaration  mentioned,  or 
any  part  thereof,  in  manner  and  form  as  the  said  plaintiff  hath 
above  complained.  And  this  the  said  defendant  is  ready  to 
verify. 

When  several  pleas  are  pleaded  either  to  different  matters, 
or  by  virtue  of  the  statute  of  Anne  to  the  same  matter,  as  in  the 


§   457  SEVERAL  PLEAS  905 

last  example,  the  plaintiff  may,  according  to  the  nature  of  his 
case,  either  demur  to  the  whole,  or  demur  to  one  plea  and  reply 
to  the  other,  or  make  a  several  replication  to  each  plea;  and  in 
the  two  latter  cases  the  result  may  be  a  corresponding  severance 
in  the  subsequent  pleadings,  and  the  production  of  several  issues. 
But  whether  one  or  more  issues  be  produced,  if  the  decision, 
whether  in  law  or  fact,  be  in  the  defendant's  favor  as  to  any 
one  or  more  pleas,  he  is  entitled  to  judgment,  though  he  fail  as 
to  the  remainder — i.  e.,  he  is  entitled  to  judgment  in  respect  of 
that  subject  of  demand  or  complaint  to  which  the  successful  plea 
relates;  and  if  it  were  pleaded  to  the  whole  declaration,  to  judg- 
ment generally,  though  the  plaintiff  should  succeed  as  to  all  the 
other  pleas. 

The  use  of  several  pleas  (though  presumably  intended  by  the 
statute  to  be  allowed  only  in  a  case  where  there  are  really  several 
grounds  of  defence), (w)  is  in  practice  sometimes  carried  fur- 
ther. For  it  was  soon  found  that  when  there  was  a  matter  of  de- 
fence by  way  of  special  plea,  it  was  generally  expedient  to  plead 
that  matter  in  company  with  the  general  issue,  whether  there 
were  any  real  ground  for  denying  the  declaration  or  not ;  because 
the  effect  of  this  is  to  put  the  plaintiff  to  the  proof  of  his  declara- 
tion, or  some  material  part  of  it,  before  it  can  become  necessary 
for  the  defendant  to  establish  his  special  plea ;  and  thus  the  de- 
fendant has  the  chance  of  succeeding,  not  on  the  strength  of 
his  own  case,  but  by  the  failure  of  the  plaintiff's  proof.  To  this 
extent,  therefore,  is  the  use  of  several  pleas  now  carried;  and 
accordingly  the  form  of  pleading  in  the  last  of  the  above  examples 
is  in  practice  frequently  adopted  instead  of  that  in  the  first, 
whether  the  truth  of  the  case  really  warrants  a  denial  of  both 
counts  or  not.  Some  efforts,  however,  were  at  one  time  made  to 
restrain  this  apparent  abuse  of  the  indulgence  given  by  the 
statute.  For  that  leave  of  the  court,  which  the  statute  requires, 
was  formerly  often  refused  where  the  proposed  subjects  of  plea 
appeared  to  be  inconsistent;  and  on  this  ground  leave  has  been 
refused  to  plead  to  the  same  trespass  not  guilty,  and  accord  and 
satisfaction;  or  non  cst  factum  and  payment  to  the  same  de- 
Cm)  See  Lord  Clinton  v.  Morton,  2  Str.  1000. 


906  '  SINGLENESS  OF  ISSUE  §    458 

mand.(w)  But  in  modern  practice,  such  pleas,  notwithstanding 
the  apparent  repugnancy  between  them,  are  permitted  ;(o)  and 
the  only  pleas,  perhaps,  which  have  been  uniformly  disallowed  on 
the  mere  ground  of  inconsistency,  are  those  of  the  general  issue 
and  a  tender. 

§  458.    Several  replications.18 

On  the  subject  of  several  pleas  it  is  to  be  further  observed  that 
the  statute  of  Anne  extends  to  the  case  of  pleas  only,  and  not  to 
replications  or  subsequent  pleadings.  These  remain  subject  to 
the  full  operation  of  the  common  law  against  duplicity ;  so  that, 
though  to  each  plea  there  may  (as  already  stated)  be  a  separate 
replication,  yet  there  cannot  be  offered  to  the  same  plea,  and  in 
reference  to  the  same  matter  of  claim  or  complaint,  more  than  a 
single  replication,  nor  to  the  same  replication  more  than  one 
rejoinder,  and  so  to  the  end  of  the  series.  The  legislative  pro- 
vision allowing  several  matters  of  plea  was  confined  to  that  case, 
under  the  impression,  probably,  that  it  was  in  that  part  of  the 
pleading  that  the  hardship  of  the  rule  against  duplicity  was  most 
seriously  and  frequently  felt;  and  that  the  multiplicity  of  issues 
which  would  be  occasioned  by  a  further  extension  of  the  enact- 
ment would  have  been  attended  with  expense  and  inconvenience 
more  than  equivalent  to  the  advantage.  The  effect,  however,  of 
this  state  of  law  is  somewhat  remarkable ;  for  example,  it  em- 
powers a  defendant  to  plead  to  a  declaration  in  assumpsit  for 
goods  sold  and  delivered,  1.  Non  assumpsit;  2.  That  the  cause 
of  action  did  not  accrue  within  six  years ;  3.  That  he  was  an 
infant  at  the  time  of  the  contract.  On  the  first  plea  the  plaintiff 
has  only  to  join  issue;  but  with  respect  to  each  of  the  two  last,  he 
may  have  several  answers  to  give.  The  case  may  be  such  as  to 
afford  either  of  these  replications  to  the  statute  of  limitations, 
viz,  that  the  cause  of  action  did  accrue  within  six  years,  or  that 
at  the  time  the  cause  of  action  accrued,  he  was  beyond  sea,  and 

(n)   Com.   Dig.,  Pleader   (E.  2). 

(0)  Vide  1  Sel.  Practice,  299;  2  Chitty,  502;  Rama  Chitty  v.  Hume, 
13  East,  255. 


18.  See  ante,   §   198. 


§  458  SEVERAL  REPLICATIONS  907 

that  he  commenced  his  suit  within  six  years  after  his  return.  So 
to  the  plea  of  infancy,  he  may  have  ground  for  replying  either 
that  the  defendant  was  not  an  infant,  or  that  the  goods  for  which 
the  action  is  brought  were  necessaries  suitable  to  the  defendant's 
condition  in  life.  Yet  though  the  defendant  had  the  advantage 
of  his  three  pleas  cumulatively,  the  plaintiff  is  obliged  to  make 
his  election  between  these  several  answers,  and  can  reply  but 
one  of  them  to  each  plea. 

It  is  also  to  be  observed  that  the  power  of  pleading  several 
matters  extends  to  pleas  in  bar  only,  and  not  to  those  of  the 
dilatory  class,  with  respect  to  which,  the  leave  of  the  court  will 
not  be  granted.  (/>) 

Again,  it  is  to  be  remarked,  that  the  statute  does  not  operate 
as  a  total  abrogation,  even  with  respect  to  pleas  in  bar,  of  the 
rule  against  duplicity.  For  in  the  first  place  it  is  necessary  (as 
we  have  seen)  to  obtain  the  leave  of  the  court  to  make  use  of 
several  matters  of  defence.  And  each  defence  must  besides  be 
distinctly  pleaded  as  a  new  or  further  plea ;  so  that  notwithstand- 
ing the  statute,  and  the  leave  of  the  court  obtained  in  pursuance 
of  it  to  plead  several  matters  it  would  still  be  improper  to  in- 
corporate several  matters  in  one  plea,  in  any  case  in  which  the 
plea  would  be  thereby  rendered  double  at  common  law. 

By  a  very  ancient  relaxation  of  practice  the  rule  against  duplic- 
ity had,  to  a  considerable  extent,  been  evaded,  by  stating  the 
same  cause  of  action  in  various  ways  in  the  shape  of  several 
counts,  and  the  same  matter  of  defence  in  various  ways  in  the 
shape  of  several  pleas.  But  by  the  recent  rule  of  Hil.  T.  4  Will. 
4,  it  is  now  provided  that  "several  counts  shall  not  be  allowed 
unless  a  distinct  subject-matter  of  complaint  is  intended  to  be 
established  in  respect  of  each,  nor  shall  several  pleas  or  avowries, 
or  cognizances  be  allowed,  unless  a  distinct  ground  of  answer 
or  defence  is  intended  to  be  established  in  respect  of  each. 

Such  is  the  nature  and  extent  of  the  rule  against  double  plead- 
ing. Under  this  rule  it  remains  only  to  observe  that  if,  instead 
of  demurring  for  duplicity,  the  opposite  party  passes  the  fault  by, 
and  pleads  over,  he  is  in  that  case  bound  to  answer  each  matter 

(/>)   See   1    Sel.    Pract.   275. 


908  SINGLENESS  OP  ISSUE;  §  459 

alleged ;  and  has  no  right,  on  the  ground  of  the  duplicity,  to  con- 
fine himself  to  any  single  part  of  the  adverse  statement. (q) 

RULE  II. 

§  459.    It  is  not  allowable  both  to  plead  and  to  demur  to 
the  same  matter,  (r) 

This  rule  depends  on  exactly  the  same  principles  as  the  last. 
As  it  is  not  allowable  to  plead  double,  lest  several  issues  in  fact 
in  respect  of  the  same  matter  should  arise,  so  it  is  not  permitted 
both  to  plead  and  demur  to  the  same  matter,  lest  an  issue  in  fact 
and  an  issue  in  law,  in  respect  of  a  single  subject,  should  be  pro- 
duced. The  party  must,  therefore,  make  his  election. 

The  rule,  however,  it  will  be  observed,  only  prohibits  the  plead- 
ing and  demurring  to  the  same  matter.  It  does  not  forbid  this 
course  as  applicable  to  distinct  statements.  Thus  a  man  may 
plead  to  one  count,  or  one  plea,  and  demur  to  another.  The  rea- 
son of  this  distinction  is  sufficiently  explained  by  the  remarks 
already  made  on  the  subject  of  duplicity  in  pleading. 

Lastly,  it  is  to  be  remarked  that  the  statute  of  Anne,  which 
authorizes  the  pleading  of  several  pleas,  gives  no  authority  for 
demurring  and  pleading  to  the  same  matter.  The  rule  now  in 
question,  therefore,  is  not  affected  by  that  provision ;  but  remains 
in  the  same  state  as  at  common  law.19 

[In  Virginia  it  is  provided  by  statute  that  the  defendant  in 
any  action  may  plead  as  many  several  matters,  whether  of  law 
or  fact,  as  he  may  think  necessary,  and  he  may  file  pleas  in  bar 
at  the  same  time  with  pleas  in  abatement,  or  within  a  reasonable 

(<?)   Botton  v.   Cannon,  1  Vent.  272. 
(r)   Bac.  Ab.,  Pleas,  etc.    (K.),  1. 


19.  In  Virginia,  while  a  defendant  may  both  demur  and  plead  to 
the  same  count  in  a  declaration,  the  rule  extends  no  further  than  the 
defendant's  first  pleading,  and  subsequent  to  this  stage  the  pleader 
cannot  demur  and  also  answer  in  fact,  but  must  make  his  election. 
Ches.  &  O.  R.  Co.  v.  Bank,  92  Va.  495,  23  S.  E.  935,  1  Va.  Law  Reg. 
825  and  note.  In  West  Va.  the  privilege  of  making  more  than  one 
answer  of  law  and  fact  is  extended  one  stage  farther,  that  is,  to  the 
replication.  W.  Va.  Code,  §  3840;  ante,  §  198. 


§    459     DOUBLE  PLEADING  TO  SAME  MATTER  NOT  ALLOWABLE         909 

time  thereafter,  but  the  issues  on  the  pleas  in  abatement  shall  be 
first  tried.20  A  similar  statute  prevails  in  West  Virginia,  except 
that  if  the  defendant  pleads  non  est  factum  he  cannot,  without  the 
leave  of  the  court,  plead  any  other  pleas  inconsistent  therewith.21 
In  comparing  the  Virginia  Statute  with  the  Statute  of  Anne, 
Prof.  Graves  says,  "It  will  be  seen  that  this  statute  differs  from 
the  Statute  of  Anne  in  three  particulars :  In  Virginia  ( 1 )  No 
leave  of  the  court  is  required  (see  this  expressly  declared  by  § 
3270)  ;  (2)  it  extends  to  pleas  in  abatement  as  well  as  to  pleas 
in  bar,  and  several  dilatory  pleas  may  be  pleaded  at  the  same 
time,  and  dilatory  and  peremptory  pleas  together  (4  Minor's 
Inst.  764)  ;  and  (3)  it  permits  the  defendant  to  both  demur  and 
plead,  for  he  may  plead  as  many  several  matters,  whether  of  law 
(demurrer)  or  fact  (plea)  as  he  shall  think  necessary."22  Both 
the  English  statute  and  the  Virginia  statute,  however,  use  the 
word  "plead"  in  its  technical  sense,  and  hence  the  right  to  set  up 
more  than  one  matter  does  not  extend  to  the  plaintiff's  replication, 
nor  to  any  subsequent  pleadings.  While  the  defendant  may 
plead  as  many  matters  of  law  and  fact  as  he  pleases,  he  must 
plead  them  in  several  pleas  and  not  more  than  one  in  a  single 
plea,  unless  the  matter  so  pleaded  constitutes  but  a  single  defence, 
otherwise  the  plea  will  be  double.]23 

20.  Code,    §   3264. 

21.  W.  Va.  Code,  1906,  §  3840;  ante,  §  198. 

22.  Graves'  Pleading  (old),  page  104. 

23.  See  further  on   the   subject  of  duplicity,  ante,  §   199. 


CHAPTER  LII. 

RULES  WHICH  TEND  TO  PRODUCE  CERTAINTY  OR  PARTICULARITY 

IN  THE;  ISSUE. 

RULE    I. 

§  460.  The  pleadings  must  have  certainty  of  place. 

RULE   II. 

§  461.  The   pleadings   must   have    certainty    of    time. 

RULE    III. 

§  462.  The  pleadings   must  specify   quality,  quantity,  and   value. 
§  463.  General   statements   of  quantity  and   quality. 
§  464.  Actions   to   which   rule   inapplicable. 
§  465.  Allegation   and  proof. 

RULE    IV. 

§  466.  The  pleadings  must  specify  the  names  of  parsons. 
§  467.   Misnomer. 

RULE   V. 

§'  468.  The  pleadings  must  show   title. 

§  469.  Derivation   of   title. 

§  470.  Particular   estates. 

§  471.  Additional    rules    on    derivation    of    title. 

§  472.  Plea  of  liberum   tenementum. 

§  473.  Title    of   possession. 

§  474.  When  title  of  possession  is  applicable. 

§  475.  When  title   of  possession  is  sufficient. 

§  476.  Alleging  title  in   adversary. 

§  477.  Title    must   be    strictly   proved. 

§  478.  Estoppel  to  deny  title. 

RULE  VI. 

§  479.  The   pleadings   must  show   authority. 

RULE    VII. 

§  480.  In  general  whatever  is  alleged  in  pleading  must  be  alleged  with 
certainty. 

SUBORDINATE    RULES. 

§  481.  It  is  not  necessary  in  pleading  to  state  that  which  is 

merely  matter  of  evidence. 
§  482.  It  is  not  necessary  to  state  matter  of  which  the  court 

takes   notice  ex  officio. 


§  460    THE  PLEADING  MUST  HAVE  CERTAINTY  OF  PLACE      911 

§  483.  It  is  not  necessary  to  state  matter  which  would  come 
more  properly  from  the  other  side. 

§  484.  It  is  not  necessary  to  allege  circumstances  necessarily 
implied. 

§  485.  It  is  not  necessary  to  allege  what  the  law  will  pre- 
sume. 

§  486.  A  general  mode  of  pleading  is  allowed  where  great 
prolixity  is  thereby  avoided. 

§  487.  A  general  mode  of  pleading  is  often  sufficient,  where 
the  allegation  on  the  other  side  must  reduce  the 
matter  to  certainty. 

§  488.  No  greater  particularity  is  required  than  the  nature 
of  the  thing  pleaded  will  conveniently  admit. 

§  489.  Less  particularity  is  required  when  the  facts  lie  more 
in  the  knowledge  of  the  opposite  party  than  of 
the  party  pleading. 

§  490.  Less  particularity  is  necessary  in  the  statement  of 
matter  of  inducement  or  aggravation,  than  in  the 
main  allegations. 

§  491.  With  respect  to  acts  valid  at  common  law,  but  reg- 
ulated as  to  the  mode  of  performance  by  statute, 
it  is  sufficient  to  use  such  certainty  of  allegation 
as  was  sufficient  before  the  statute. 


RULE  I. 
§  460.    The  pleading  must  have  certainty  of  place. (a) 

It  was  formerly  explained  that  the  nature  of  the  trial  by  jury, 
while  conducted  in  the  form  which  first  belonged  to  that  institu- 
tion, was  such  as  to  render  particularity  of  place  absolutely  es- 
sential in  all  issues  which  a  jury  was  to  decide.  Consisting,  as 
the  jurors  formerly  did,  of  witnesses,  or  persons  in  some  measure 
cognizant  of  their  own  knowledge  of  the  matter  in  dispute,  they 
were  of  course  in  general,  to  be  summoned  from  the  particular 
place  or  neighborhood  where  the  fact  happened ;(b)  and  in  order 

(a)  Com.    Dig.,    Pleader    (C.    20);    Ibid.,    Abatement    (tt.    13);    Co. 
Litt.    125a. 

(b)  Co.   Litt.   by   Harg.   125a,   n.   1.     "The  venire  was  to  bring  up 
the  fares  of  the  place  where  the  fact  was  laid  in   order  to  try  the 
issue;  and  originally  every  fact  was  laid  in  the  place  where  it  was 
really    done;    and    therefore    the    written    contracts    bore    date    at    a 
certain  place."     Gilb.  Hist.  C.  P.  84. 


912  CERTAINTY  OF  ISSUE  §    460 

to  know  into  what  county  the  venire  facias  for  summoning  them 
should  issue,  and  to  enable  the  sheriff  to  execute  that  writ,  it  was 
necessary  that  the  issue,  -and  therefore  the  pleadings  out  of  which 
it  arose,  should  show  particularly  what  that  place  or  neighbor- 
hood was.(c)  Such  place  or  neighborhood  was  called  the  venue 
or  visne  (from  vicinetum)  ;(d)  and  the  statement  of  it  in  the 
pleadings  obtained  the  same  name;  to  allege  the  place  being  in 
the  language  of  pleading,  to  lay  the  venue. 

Until  the  change  of  system  introduced  by  the  late  Rule  of 
Court,  Hil.  4  Will.  4,  it  was  accordingly  the  rule  that  every  al- 
legation in  the  pleadings,  upon  which  issue  could  be  taken,  that  is, 
every  material  and  traversable  allegation  (supposing  it  to  be  in 
the  affirmative  form)  should  be  laid  with  a  venue;  that  is,  should 
state  the  place  at  which  the  alleged  fact  happened.  This  venue 
was  to  consist  (according  to  the  more  rigorous  and  ancient  prac- 
tice at  least)  not  only  of  the  county,  but  also  of  the  parish,  town, 
or  hamlet  in  the  county.  A  venue  was  also  laid  in  the  margin  of  the 
declaration,  at  its  commencement,  by  inserting  there  the  name  of 
the  county  in  which  the  several  facts  mentioned  in  the  body  of 
the  declaration,  or  some  principal  part  of  them,  occurred.  The 
venue  so  laid  down  in  the  margin  was  called  the  venue  in  the 
action,  and  the  action  was  said  to  be  laid,  or  brought  within  that 
county;  because  it  was  always  the  same  county  as  that  into  which 
the  original  writ  had  issued  at  the  commencement  of  the  suit,  and 
because  the  action  was  always  tried  by  a  jury  of  that  county,  un- 
less a  new  and  different  venue  happened  to  be  laid  in  the  sub- 
sequent pleadings. 

Though  the  original  object  of  thus  laying  a  venue  was  to  de- 
termine the  place  from  which  the  venire  facias  should  direct  the 
jurors  to  be  summoned,  in  case  the  parties  should  put  themselves 
upon  the  country,  that  practice  had  nevertheless,  so  far  as  re- 
garded the  laying  of  a  venue  of  the  body  of  the  pleadings,  become 
an  unmeaning  form,  the  venue  in  the  margin  having  been  long 
found  sufficient  for  all  practical  purposes.  It  may  be  convenient 
to  explain  here  by  what  process  this  change  took  place. 

(c}   Ilderton  v.  Ilderton,  2  H.  Bl.  161.     Per  Lord.  Mansfield,  Mos- 
tyn  v.  Fabrigas,  Cowp.  176;   Co.  Litt.  125a,  b.     See  2  Hen.  7,  4. 
(d)   Bac.   Ab.,   Visne   or   Venue    (A.);    3   Bl.    Com.   294. 


§  460      THE;  PLEADING  MUST  HAVE  CERTAINTY  OF  PLACE          913 

The  most  ancient  practice,  as  established  at  the  period  when 
juries  were  composed  of  persons  cognizant  of  their  own  knowl- 
edge of  the  fact  in  dispute,  was  of  course  to  summon  the  jury 
from  that  venue  which  had  been  laid  to  the  particular  fact  in 
issue;  and  from  the  venue  of  parish,  town,  or  hamlet,  as  well  as 
county. (e)  Thus,  in  an  action  of  debt  on  bond,  if  the  declaration 
alleged  the  contract  to  have  been  made  at  Westminster,  in  the 
county  of  Middlesex,  and  the  defendant  in  his  plea  denied  the 
bond,  issue  being  joined  on  this  plea,  it  would  be  tried  by  a  jury 
from  Westminster.  Again,  if  he  pleaded  an  affirmative  matter, 
as,  for  example,  a  release,  he  would  lay  this  new  traversable  al- 
legation with  a  venue ;  and  if  this  venue  happened  to  differ  from 
that  in  the  declaration,  being  laid,  for  example,  at  Oxford,  in  the 
county  of  Oxford,  and  issue  were  taken  on  the  plea,  such  issue 
would  be  tried  by  a  jury  from  Oxford,  and  not  from  West- 
minster^/) And  it  may  be  here  incidentally  observed,  that  as 
the  place  or  neighborhood  in  which  the  fact  arose  and  also  the 
allegation  of  that  place  in  the  pleadings,  was  called  the  venu^e,  so 
the  same  term  was  often  applied  to  the  jury  summoned  from 
thence.  Thus  it  would  be  said  in  the  case  last  supposed,  that  the 
venue  was  to  come  from  Oxford.  With  respect  to  the  form  of 
the  venire  at  this  period,  it  was  as  follows :  venire  facias  duo- 
decim  liber os  et  legales  homines,  de  vicineto  de  W.  (or  O.)  (i.  e. 
the  parish,  town,  or  hamlet)  per  quos  rei  veritas  melius  sciri 
potent,  etc. 

While  such  appears  to  have  been  the  most  ancient  state  of 
practice,  it  soon  sustained  very  considerable  changes.  When  the 
jury  began  to  be  summoned  no  longer  as  witnesses,  but  as  judges, 
and  instead  of  being  cognizant  of  the  fact  on  their  own  knowl- 
edge, received  the  fact  from  the  testimony  of  others  judicially  ex- 
amined before  them,  the  reason  for  summoning  them  from  the 
immediate  neighborhood  ceased  to  apply,  and  it  was  considered 
as  sufficient  if,  by  way  of  partial  conformity  with  the  original 
principle,  a  certain  number  of  the  jury  came  from  the  same 

O)  Co.  Litt.  125a;  Bac.  Ab.,  Visne  or  Venue  (E).  Illustrative 
Case.  43  Ed.  Ill,  I. 

(/)  Craft  v.  Boite,  1  Saund.  246b;  Com.  Dig.,  Action  (N.  12);  45 
Ed.  Ill,  15;  3  Reeves,  110. 

—58 


914  CERTAINTY  OF  ISSUE  §    460 

hundred  in  which  the  place  laid  for  venue  was  situate,  though 
their  companions  should  be  of  the  county  only,  and  neither  of 
the  venue,  nor  even  of  the  hundred.  This  change  in  the  manner 
of  executing  the  venire  did  not,  however,  occasion  any  alteration 
in  its  form,  which  still  directed  the  sheriff,  as  in  former  times,  to 
summon  the  whole  jury  from  the  particular  venue,  (g)  The 
number  of  hundredors  which  it  was  necessary  to  summon,  was  dif- 
ferent at  different  periods :  in  later  times,  no  more  than  tzvo 
hundredors  were  required  in  a  personal  action,  (h) 

In  this  state  of  the  law,  was  passed  the  statute  16  and  17  Car. 
2,  c.  8.  By  this  act  (which  is  one  of  the  statutes  of  jeofails)  it  is 
provided,  "that  after  verdict,  judgment  shall  not  be  stayed  or  re- 
versed, for  that  there  is  no  right  to  venue, — so  as  the  cause  were 
tried  by  a  jury  of  the  proper  county  or  place  where  the  action  is 
laid."  This  provision  was  held  to  apply  to  the  case  (among 
others)  where  issue  had  been  taken  on  a  fact  laid  with  a  different 
venue  from  that  in  the  action,  but  where  the  venire  had  improp- 
erly directed  a  jury  to  be  summoned  from  the  venue  in  the  action, 
instead  of  the  venue  laid  to  the  fact  in  issue. (i)  This  had  form- 
erly been  matter  of  error,  and  therefore  ground  for  arresting  or 
reversing  the  judgment ;(/)  but  by  this  act  (passed  with  a  view 
of  removing  what  had  become  a  merely  formal  objection)  the 
error  was  cured,  and  the  staying  or  reversal  of  the  judgment  dis- 
allowed. While  such  was  its  direct  operation,  it  has  had  a  further 
effect,  not  contemplated  perhaps  by  those  who  devised  the  enact- 
ment. For  what  the  statute  only  purported  to  cure  as  an  error, 
it  virtually  established  as  regular  and  uniform  practice ;  and  issues 
taken  on  facts  laid  with  a  different  venue  from  that  in  the  action 
were  afterwards  constantly  tried,  not  by  a  jury  of  the  venue  laid 
to  the  fact  in  issue,  but  by  a  jury  of  the  venue  in  action. (k) 

Another  change  was  introduced  by  the  statute  4  Ann.  c.  16,  §  6. 
This  act  provides  that  "every  venire  facias  for  the  trial  of  any 
issue  shall  be  awarded  of  the  body  of  the  proper  county  where 

(g)  27  Eliz.,  ch.  6,  §  1;   Litt.  234. 
(/»)   27    Eliz.,   ch.   6,   §   5. 
(0   Craft  v.  Boite,  1  Saund.  247. 

(;')   1  Saund.  247,  n.  1;  2  Saund.  5,  n.  3;  Bowyer's  Case,  Cro.   Eliz. 
468;  Eden's  Case,  6  Rep.  15b;  Co.  Litt.  by  Harg.  125a,  n.  1. 
(£)  2   Saund.   5,  n.  3. 


§  460    THE  PLEADING  MUST  HAVE  CERTAINTY  OF  PLACE      915 

such  issue  is  triable,"  instead  of  being  (as  in  the  ancient  form) 
awarded  from  the  particular  venue  of  parish,  town,  or  hamlet. 
From  this  time,  therefore,  the  form  of  the  venire  has  been 
changed ;  and  directs  the  sheriff  to  summon  twelve  good  and  law- 
ful men,  etc.,  "from  the  body  of  his  county:"  and  they  are  ac- 
cordingly, in  fact,  all  summoned  from  the  body  of  the  county  only, 
and  no  part  of  them  necessarily  from  the  hundred  in  which  the 
particular  place  laid  for  venue  is  situate. 

It  thus  appears,  that  by  the  joint  effect  of  these  two  statutes, 
the  venire,  instead  of  directing  the  jury  to  be  summoned  from 
that  venue  which  had  been  laid  to  the  fact  in  issue,  and  from  the 
venue  of  parish,  town,  or  hamlet,  as  well  as  county,  directed  them 
in  all  cases  to  be  summoned  from  the  body  of  the  county  in  which 
the  action  is  laid,  whether  that  be  the  county  laid  to  the  fact  in 
issue  or  not,  and  without  regard  to  the  parish,  town,  or  hamlet. 

In  this  altered  state  of  things  it  is  evident  that  there  was  no 
longer  any  real  utility  in  the  practice  of  laying  a  venue  to  each 
traversable  fact  in  the  body  of  the  pleadings.  This  practice  how- 
ever continued  to  be  observed  until  the  making  of  the  Regula 
Generalis  of  Hil.  T.  4  W.  4,  above  mentioned.  But  by  that  rule 
it  is  provided,  that  in  "future  the  name  of  a  county  shall  in  all 
cases  be  stated  in  the  margin  of  a  declaration,  and  shall  be  taken 
to  be  the  venue  intended  by  the  plaintiff,  and  no  venue  shall  be 
stated  in  the  body  of  the  declaration  or  in  any  subsequent  plead- 
ing." 

On  the  whole,  then,  the  rule  of  pleading  as  to  the  necessity  of 
laying  venue  is  now  reduced  to  this,  that  the  venue  in  the  action, 
that  is,  the  county  in  which  the  action  is  intended  to  be  tried,  and 
from  the  body  of  which  the  jurors  are  accordingly  to  be  sum- 
moned, must  be  stated  in  the  margin  of  the  declaration ;  and  that 
in  the  few  cases  in  which  the  proceeding  is  still  by  original  writ, 
this  must  be  the  same  county  into  which  the  original  writ  is 
issued. 

There  is,  however,  another  very  important  point  still  remaining 
to  be  considered,  viz,  how  far  it  is  necessary  to  lay  the  venue 
truly. 

Before  the  change  in  the  constitution  of  juries  above  men- 
tioned, the  venue  was  of  course  always  to  be  laid  in  the  true  place 
where  the  fact  arose,  for  so  the  reason  of  the  law  of  venue  evi- 


916  CERTAINTY  OF  ISSUE  §   460 

dently  required.  But  when,  in  consequence  of  that  change,  this 
reason  ceased  to  operate,  the  law  began  to  distinguish  between 
cases  in  which  the  truth  of  the  venue  was  material,  or  of  the 
substance  of  the  issue,  and  cases  in  which  it  was  not  so.  A  dif- 
ference began  now  to  be  recognized  between  local  and  transitory 
matters.  The  former  consisted  of  such  facts  as  carried  with  them 
the  idea  of  some  certain  place,  comprising  all  matters  relating  to 
the  realty,  and  hardly  any  others;  the  latter  consisted  of  such 
facts  as  might  be  supposed  to  have  happened  any  where,  and 
therefore  comprised  debts,  contracts,  and  generally  all  matters  re- 
lating to  the  person  or  personal  property.  With  respect  to  the 
former  it  was  held,  that  if  any  local  fact  were  laid  in  pleading  at 
a  certain  place,  and  issue  was  taken  on  that  fact,  the  place  formed 
part  of  the  substance  of  the  issue,  and  must  therefore  be  proved 
as  laid,  or  the  party  would  fail  as  for  want  of  proof.  But  as  to 
transitory  facts  the  rule  was,  that  they  might  be  laid  as  having 
happened  at  one  place,  and  might  be  proved  on  the  trial  to  have 
occurred  at  another^/)1 

The  late  rule  of  Hil.  T.  4  Will.  4,  having  abolished  the  allega- 
tion of  venue,  except  as  it  regards  the  county  in  the  margin  of 
the  declaration  (or  venue  in  the  action),  the  present  state  of  the 
law  with  respect  to  the  necessity  of  laying  the  true  venue,  is 
accordingly  as  follows: 

Actions  are  either  local  or  transitory.2  An  action  is  local  if  all 
the  principal  facts  on  which  it  is  founded  be  local',  and  transi- 
tory, if  any  principal  fact  be  of  the  transitory  kind.  In  a  local 
action,  the  plaintiff  must  lay  the  venue  in  the  action  truly.  In  the 
transitory  one,  he  may  lay  it  in  any  county  that  he  pleases. 

From  this  state  of  the  law  it  follows,  first,  that  if  an  action  be 
local,  and  the  facts  arose  out  of  the  realm,  such  action  cannot 
be  maintained  in  the  English  courts  ;(wz)  for  as  the  venue  in  the 
action  is  to  be  laid  truly,  there  is  no  county  which,  consistently 

'(/)  Vin.  Ab.,  Trial   (m.  f.);   Co.  Litt.  282a. 

(m)   Per  Buller,  J.,   Doulson   v.   Matthews,   4  T.   R.   503. 


Va.    Code,   §   3243. 


1.  va.   v^oae,   §   oX4cs. 

2.  The   subjects  of  venue  in  Virginia,  and  of  local  and  transitory 
actions,  are  treated  ante,  §§  67,  186. 


§  460    THE  PLEADING  MUST  HAVE  CERTAINTY  OF  PLACE      917 

with  that  rule,  can  be  laid  in  the  margin  of  the  declaration.  But, 
on  the  other  hand,  if  the  action  be  transitory,  then,  though  all  the 
facts  arose  abroad,  the  action  may  be  maintained  in  this  country, 
because  the  venue  in  the  action  may  be  laid  in  any  English  county, 
at  the  option  of  the  plaintiff.3 

The  same  state  of  law  also  leads  to  the  following  inference, 
that  in  a  transitory  action  the  plaintiff  may  have  the  action  tried 
in  any  county  that  he  pleases;  for  (as  we  have  seen)  he  may  lay 
the  venue  in  the  action  in  any  county,  and  upon  issue  joined,  the 
venire  issues  into  the  county  where  the  venue  in  the  action  is  laid. 
And  such  accordingly  is  the  rule,  subject  only  to  a  check  inter- 
posed by  another  regulation,  viz,  that  which  regulates  the  chang- 
ing of  the  venue.  The  courts  established  about  the  reign  (as  it 
is  said)  of  James  I(w)  a  practice  by  which  defendants  were  en- 
abled to  protect  themselves  from  any  inconvenience  they  might 
apprehend  from  the  venue  being  laid  contrary  to  the  fact,  and  en- 
force, if  they  pleased,  a  compliance  with  the  stricter  and  more  an- 
cient system.  By  this  practice,  when  the  plaintiff  in  a  transitory 
action  lays  a  false  venue,  the  defendant  is  entitled  to  move  the 
court,  to  have  the  venue  changed,  i.  e.,  altered  to  the  right  place ; 
and  the  court,  upon  affidavit  that  the  cause  of  action  arose  wholly 
in  the  county  to  which  it  is  proposed  to  change  the  venue,  will  in 
most  cases  grant  the  application,  and  oblige  the  plaintiff  to  amend 
his  declaration  in  this  particular :  unless  he,  on  the  other  hand, 
will  undertake  to  give  at  the  trial  some  material  evidence  arising 
in  the  county  where  the  venue  was  laid.4 

Hitherto  the  rule  as  to  alleging  place  in  the  pleadings  has  been 
considered  exclusively  in  reference  to  the  ancient  and  nearly  ex- 
tinguished learning  of  venue.  But  it  is  to  be  observed  that  in 
some  cases  place  is  alleged  in  pleading,  without  reference  to  the 
object  of  determining  from  whence  the  jurors  are  to  come,  and 
merely  to  give  a  reasonable  certainty  and  clearness  to  the  general 

(n)   Knight  v.   Farnaby,  2   Salk.   670. 


3.  See  Va.  Code,  §§  3214,  3215,  3220;  ante,  §  186. 

4.  In  Virginia,  the  venue  may  be  changed  "for  good  cause  shown" 
after  twenty   days   notice,  or  without   notice   where   the  judge   is   so 
situated  as  to  render  it  improper  for  him  to  sit  in  a  cause.     Code, 
§§   3316,   3317. 


918  ,  CERTAINTY  OF  ISSUE  §    461 

statement  of  facts.  Thus,  where  the  plaintiff  complains  of  a  tres- 
pass to  his  close,  or  the  defendant  claims  a  right  of  way  over  the 
plaintiff's  close,  from  one  terminus  to  another,  the  declaration, 
for  greater  certainty,  states  the  name  of  the  close  and  of  the  par- 
ish and  county  where  it  is  situate,  and  the  plea  sets  forth  the 
termini  of  the  way. 

The  allegation  of  place  in  such  cases  was  always  necessary  in 
point  of  due  particularity,  and  as  matter  of  local  description;  and 
it  still  continues  to  be  so,  notwithstanding  the  rule  of.  court  above 
cited,  dispensing  with  venue  in  the  body  of  the  pleadings.  For 
that  rule  contains  an  express  proviso  "that  in  cases  where  local 
description  is  now  required,  such  local  description  shall  be  given." 

It  remains  only  to  add,  that  where  place  is  alleged  as  matter  of 
description,  and  not  as  venue,  it  must  in  all  cases  be  stated  truly 
and  according  to  the  fact,  under  peril  of  variance,  if  the  matter 
should  be  brought  into  issue. 

RULE  II. 

§  461.    The  pleadings  must  have  certainty  of  time.(o) 
In  personal  actions,  the  pleadings  must  allege  the  time,  that  is, 

the  day,  month,  and  year  when  each  traversable  fact  occurred; 

and  when  there  is  occasion  to  mention  a  continuous  act,  the  period 

of  its  duration  ought  to  be  shown. 

The  necessity  of  laying  a  time  extends  to  traversable  facts  only, 

and,  therefore,  no  time  need  be  alleged  to  matter  of  inducement 

or  aggravation. 

The  time  is  considered  in  general  as  forming  no  material  part 

of  the  issue,  so  that  one  time  may  be  alleged  and  another  proved. 

The  pleader,  therefore,  assigns  any  time  that  he  pleases  to  a  given 

fact.     This  option,  however,    is    subject  to  certain  restrictions: 

1.  He  should  lay  the  time  under  a  videlicet  ("to  wit,"  or  "that  is 

to  say,")  if  he  does  not  wish  to  be  held  to  prove  it  strictly.5 

(0)  Com.  Dig.,  Pleader  (C.  19);  Halsey  v.  Carpenter,  Cro.  Jac. 
359;  Denison  v.  Richardson,  14  East,  291. 


5.  If  the  time  is  material  (for  example,  is  descriptive)  the  videlicet 
will  not  avoid  the  necessity  of  proving  it  as  laid.  It  is  only  when 
it  is  immaterial  that  the  videlicet  is  of  value. 


§  461      THE;  PLEADINGS  MUST  HAVE  CERTAINTY  OF  TIME         919 

[The  Use  of  Videlicet. — Whenever  a  pleader  desires  to  state 
time,  place,  distance,  or  any  other  fact  which  he  is  not  required 
to  prove,  he  prefaces  it  with  a  videlicet,  or  the  words,  "to  wit,"  or 
"that  is  to  say."  For  example,  where  a  passenger  sued  for  a  per- 
sonal injury  in  alighting  from  a  train  at  a  station,  and  alleged  that 
no  sufficient  platform  was  provided  for  passengers  to  alight,  she 
stated  that  in  alighting  she  had  to  step  down  "a  great  distance,  to 
wit,  two  feet."  It  was  held  that  it  was  not  necessary  for  the  plain- 
tiff to  prove  the  exact  distance,  and  that  proof  that  the  distance 
was  from  26  to  34  inches  supported  the  allegation.6  The  office 
of  a  videlicet  is  to  mark  that  the  party  does  not  undertake  to  prove 
precisely  the  circumstances  alleged,  and  in  such  cases  he  is  not 
required  to  prove  them  unless  material  to  the  issue. 

It  was  formerly  necessary  in  pleading  to  allege  where  a  con- 
tract was  made,  or  other  act  done,  which  was  set  forth  in  the 
pleadings,  and  if  this  place  were  different  from  the  venue  of  the 
action,  or  place  where  the  action  was  brought,  it  was  alleged  as  of 
the  true  place,  but  with  a  z'idelicet  of  the  county  in  which  the  ac- 
tion was  brought,  for  instance,  if  an  action  were  brought  in  Craig 
County,  Virginia,  on  a  note  dated  at  Lynchburg,  Virginia,  the  dec- 
laration would  set  forth  that  the  note  was  made  at  Lynchburg, 
Virginia,  to  wit,  in  the  county  of  Craig,  Virginia.  But  it  is  now 
provided  by  statute,  both  in  Virginia  and  West  Virginia,  that  it 
shall  not  be  necessary  in  any  declaration,  or  other  pleading,  to 
set  forth  the  place  in  which  any  contract  was  made,  or  act  done, 
unless  when,  from  the  nature  of  the  case,  the  place  is  material  and 
traversable,  and  then  the  allegation  may  be,  as  to  a  deed,  note,  or 
other  writing,  bearing  date  at  any  place,  that  it  was  made  at  such 
place,  or  as  to  any  other  act  according  to  the  fact,  without  aver- 
ring or  suggesting  that  it  was  at  or  in  the  county  or  corporation  in 
which  the  action  is  brought,  unless  it  was  in  fact  therein.]7 

2.  He  should  not  lay  a  time  that  is  intrinsically  impossible,  or 
inconsistent  utih  the  fact,  to  which  it  relates.  A  time  so  laid 
would,  in  general,  be  sufficient  ground  for  demurrer.  But,  on  the 
other  hand,  there  is  no  ground  for  demurrer  where  such  time  is 
laid  to  a  fact  not  traversable,  or  where,  for  any  other  reason,  the 

6.  C.  &  O.  Ry.  Co.  v.  Barger,  112  Va.  688,  72  S.  E.  693. 

7.  Code,  §  3242;  W.  Va.  Code,  §  3852. 


920  CERTAINTY  Of  ISSUE  §    461 

allegation  of  time  was  unnecessarily  made;  for  an  unnecessary 
statement  of  time,  though  impossible  or  inconsistent,  will  do  no 
harm,  upon  the  principle  that  utile  per  inutile  nou  vitiatur.(p} 

3.  Again,  there  are  some  instances  in  which  time  happens  to 
form  a  material  point  in  the  merits  of  the  case;  and  in  these  in- 
stances if  a  traverse  be  taken,  the  time  laid  is  of  the  substance  of 
the  issue,  and  must  be  strictly  proved,  just  as  in  statements  of  local 
description  it  is  necessary  to  prove  the  alleged  place.  The  pleader, 
therefore,  with  respect  to  all  facts  of  this  kind,  must  state  the 
time  truly,  at  the  peril  of  failure  as  for  a  variance.  And  here  the 
insertion  of  a  videlicet  will  give  no  help.  Thus,  where  the  decla- 
ration stated  an  usurious  contract,  made  on  the  21st  of  Decem- 
ber, 1774,  for  giving  day  of  payment  of  a  certain  sum  to  the  23d 
of  December,  1776,  and  the  proof  was,  that  the  contract  was  on 
the  23d  of  December,  1774,  giving  day  of  payment  for  two  years, 
it  was  held  that  the  verdict  must  be  for  the  defendant ;  the  princi- 
ple of  this  decision  being,  that  the  time  given  for  payment,  being 
of  the  substance  of  an  usurious  contract,  such  time  must  be  proved 
as  laid.(g)  So,  where  the  declaration  stated  an  usurious  agree- 
ment, on  the  14th  of  the  month,  to  forbear  and  give  day  of  pay- 
ment for  a  certain  period,  but  it  was  proved  that  the  money  was 
not  advanced  till  the  16th,  the  plaintiff  was  non-suited  ;(r)  it  be- 
ing held  by  Lord  Mansfield  at  the  trial,  and  afterwards  by  the 
court  in  bank,  that  the  day  from  whence  the  forbearance  took 
place  was  material,  though  laid  under  a  videlicet,  (s) 

Where  the  time  needs  not  to  be  truly  stated  (as  is  generally  the 
case),  it  is  subject  to  the  rule  that  the  plea  and  subsequent  plead- 
ings should  follow  the  day  alleged  in  the  writ  and  declaration ;(t) 
and  if  in  those  cases  no  time  at  -all  be  laid,  the  omission  is  aided 

(/>)  This  appears  to  be  a  correct  general  statement  of  the  law 
with  respect  to  demurrer  for  an  impossible  or  inconsistent  date; 
but  the  current  of  authorities  is  not  quite  clear  and  uniform  on  this 
subject.  Vide  Com.  Dig.,  Pleader  (c.  19);  2  Saund  201c,  n.  (1); 
ibid.  171a,  n.  (1);  Ring  v.  Roxborough,  2  Tyr.  468. 

(<?)  Carlisle  v.  Trears,  Cowp.   671. 

(r)   See   3    Bl.    Com.    376. 

(s)  Johnson  v.  Picket,  cited  Grimwood  v.  Barritt,  6  T.  R.  463; 
Hardy  v.  Cathcart,  5  Taunt.  2. 

(0  2   Saund.   5,  n.   3;    Hawe  v.   Planner,   1   Saund.   14. 


§    462         MUST  SPECIFY   QUALITY,  QUANTITY,   AND  VALUE  921 

after  verdict,  or  judgment  by  confession  or  default,  by  the  oper- 
ation of  the  statute  of  jeofails.(w)  But  where  in  the  plea  or  sub- 
sequent pleadings  the  time  happens  to  be  material,  it  must  be  al- 
leged :  and  there  the  pleader  may  be  obliged  to  depart  from  the 
day  in  the  writ  and  declaration.  [Thus,  in  an  action  for  stander 
the  declaration  stated  that  the  alleged  slanderous  words  were 
uttered  about  the  first  of  April,  1884.  The  defendant  demurred 
on  the  ground  that  the  time  was  not  accurately  stated.  It  was 
held  that  "In  all  personal  actions  the  pleading  must  allege  the 
time,  that  is,  the  day,  month,  and  the  year  when  each  traversable 
fact  occurred,"  and  that  in  the  present  case  there  was  not  that 
certainty  of  time  which  the  fundamental  rules  of  pleading  re- 
quire to  be  alleged  in  reference  to  traversable  facts.8 

In  another  case  the  complaint  that  the  plaintiff's  intestate  ren- 
dered certain  legal  services  to  defendant's  intestate,  at  his  re- 
quest, between  January  1,  1870,  and  October  11,  1883,  for  which 
he  had  not  been  paid.  The  defendant's  demurrer  to  the  com- 
plaint was  sustained  on  the  ground  that  the  statements  in  the 
complaint  were  not  alleged  with  sufficient  certainty.9 

Time  is  material  and  hence  must  be  truly  laid  whenever  it  is 
descriptive,  as  in  giving  the  date  or  time  of  payment  of  a  note, 
or  where  it  is  of  the  essence  of  the  right,  in  as  an  action  for 
death  by  wrongful  act.] 

Certainty  of  time  is  said  to  be  required  in  personal  actions 
only,  it  being  held,  that  in  real  and  mixed  actions  it  is  in  general 
not  necessary  to  allege  the  day,  month,  and  year,  and  that  it  is 
sufficient  to  show  in  what  king's  reign  the  matter  arose,  (v) 

RULE  III. 

§  462.    The  pleadings  must  specify  quality,  quantity,  and 
value. 

It  is  in  general  necessary,  where  the  declaration  alleges  any  in- 

(M)   Higgins  v.   Highfield,   13   East,  407. 

(v)  Com.  Dig.,  Pleader  (c.  19);  The  King  v.  Bishop  of  Chester, 
2  Salk.  561;  Skin,  600;  9  Hen.  6,  115,  116. 


8.  Cole  v.   Babcock,  78  Maine,  41,  2  Atl.  545. 

9.  Wise  v.    Hogan,   8    Pac.    784. 


922  CERTAINTY  OF  ISSUE  §    462 

jury  to  goods  and  chattels,  or  any  contract  relating  to  them,  that 
their  quality,  quantity,  and  value  or  price  should  be  stated.  And 
in  any  action  brought  for  recovery  of  real  property  its  quality 
should  be  shown ;  as,  whether  it  consists  of  houses,  lands,  or  other 
hereditaments ;  and  in  general  it  should*  be  stated  whether  the 
lands  be  meadow,  pasture,  or  arable,  etc.  And  the  quantity  of 
the  lands  or  other  real  estate  must  also  be  specified.10  So  in  an 
action  brought  for  injuries  to  real  property,  the  quality  should  be 
shown,  as  whether  it  consists  of  houses,  lands,  or  other  heredita- 
ments. 

So  where,  in  an  action  of  trespass  the  declaration  charged  the 
taking  of  cattle,  the  declaration  was  held  to  be  bad,  because  it  did 
not  show  of  what  species  the  cattle  were.(w)  So  in  an  action  of 
trespass  where  the  plaintiff  declared  for  taking  goods  generally, 
without  specifying  the  particulars,  a  verdict  being  found  for  the 
plaintiff,  the  court  arrested  the  judgment,  for  the  uncertainty  of 
the  declaration,  (^r)  So,  in  a  modern  case,  where  in  an  action  of 
replevin  the  plaintiff  declared  that  the  defendant,  "in  a  certain 
dwelling-house,  took  divers  goods  and  chattels  of  the  plaintiff," 
without  stating  what  the  goods  were,  the  court  arrested  the  judg- 
ment for  the  uncertainty  of  the  declaration,  after  judgment  by 
default,  and  a  writ  of  inquiry  executed.  (3;) 

***** 

[So,  a  declaration  in  trespass  containing  an  allegation  of  the 
taking  of  "Documents  and  receipts  to  prove  the  plaintiff's  claim 
for  $1,200.00  due  from  the  British  Government,  sundry  notes  of 
hand,  and  accounts  in  five  books,  and  other  papers  of  the  plain- 
tiff," is  defective  in  not  stating  the  nature  and  kind  of  chattels 
taken,  and  is  bad  on  a  motion  in  arrest  of  judgment. 

(w)   Dale   v.   Phillipson,   2   Lutw.   1374. 

(x)  Bertie  if.  Pickering,  4  Burr.  2455;  Wait  v.  Essington,  Ld.  Ray. 
1410,  S.  P. 

(y)   Pope  v.  Tillman,  7  Taunt.  642. 


10.  A  smaller  estate  or  a  less  quantity  of  land  than  was  sued  for 
may,  however,  be  recovered  in  ejectment.  See  ante,  §  125.  So,  also, 
in  detinue  less  than  the  whole  property  sued  for  may  be  recovered. 
Ante,  §  133. 


§§  463-464    ACTIONS  TO  WHICH  RULE;  INAPPLICABLE  923 

.  Foreign  Money. — Where  an  action  is  brought  in  one  of  the 
states  to  recover  an  indebtedness  stated  in  the  currency  of  a  for- 
eign country,  the  claim  should  be  stated  in  money  of  the  realm. 
The  approved  method  is  to  state  the  indebtedness  to  be  in  foreign 
money  (giving  the  amount)  of  the  value  of  so  much  domestic 


money. 


11 


§  463.    General  statements  of  quantity  and  quality. 

The  rule  in  question,  however,  is  not  so  strictly  construed,  but 
that  it  sometimes  admits  the  specification  of  quality  and  quantity 
in  a  loose  and  general  way.  Thus  a  declaration  in  trover  for  two 
packs  of  flax  and  two  packs  of  hemp,  without  setting  out  the 
weight  or  quantity  of  a  pack,  is  good  after  verdict,  and  as  it  seems, 
even  upon  special  demurrer.  (^)  So  a  declaration  in  trover  for 
a  library  of  books  has  been  allowed,  without  expressing  what  they 
were.  So  where  the  plaintiff  declared  in  trespass  for  entering  his 
house,  and  taking  several  keys  for  the  opening  of  the  doors  of  his 
said  house,  it  was  objected,  after  verdict,  that  the  kind  and  num- 
ber ought  to  be  ascertained.  But  it  was  answered  and  resolved 
that  the  keys  were  sufficiently  ascertained  by  reference  to  the 
house. (a)  So  it  was  held,  upon  special  demurrer,  that  it  was  suf- 
ficient to  declare  in  trespass  for  breaking  and  entering  a  house, 
damaging  the  goods  and  chattels,  and  wrenching  and  forcing  open 
the  doors,  without  specifying  the  goods  and  chattels  or  the  num- 
ber of  doors  forced  open ;  for  that  the  essential  matter  of  the  ac- 
tion was  the  breaking  and  entering  of  the  house,  and  the  rest 
merely  aggravation. (b) 

§  464.    Actions  to  which  rule  inapplicable. 

There  are  also  some  kinds  of  action  to  which  the  rule  requiring 
specification  of  quality,  quantity,  and  value,  does  not  apply  in 
modern  practice.  Thus  in  actions  of  debt  and  indebitatus  assump- 

(z)  2  Saund.  74b,  n.  1. 

(a)   Layton  v.   Grindall,  2  Salk.  643;  also,  2  Saund.  74b,  n.  1. 

(&)   Chamberlain  v.   Greenfield,  3  Wils.  292. 


11.  George  Campbell  Co.  v.   Geo.  Angus  Co.,  91  Va.  438,  22  S.  E. 
167. 


924  CERTAINTY  OP  ISSUE  §  465 

sit(c)  (where  a  more  general  form  of  declaration  obtains  than 
in  most  other  actions)  if  the  debt  is  claimed  in  respect  of  goods 
sold,  etc.,  the  quality,  quantity,  or  value  of  the  goods  sold  is  never 
specified.  The  amount  of  the  debt  or  sum  of  money  due  upon 
such  sale  must,  however,  be  shown.12 

§  465.    Allegation  and  proof. 

As  with  respect  to  time,  so  with  respect  to  quantity  and  value, 
it  is  not  necessary  when  these  matters  are  brought  into  issue,  that 
the  proof  should  correspond  with  the  averment.  The  pleader  may 
in  general  allege  any  quantity  and  value  that  he  pleases  (at  least 
if  it  be  laid  under  a  videlicet),  without  risk  from  the  variance,  in 
the  event  of  a  different  amount  being  proved. (d)  But  it  is  to  be 
observed,  that  a  verdict  cannot  in  general  be  obtained  for  a  larger 
quantity  or  value  than  is  alleged.™  The  pleader,  therefore,  takes 
care  to  lay  them  to  an  extent  large  enough  to  cover  the  utmost  case 
that  can  be  proved.  And  it  is  also  to  be  observed  that,  as  with 
respect  to  time,  so  with  respect  to  quantity  or  value,  there  may  be 
instances  in  which  it  forms  part  of  the  substance  of  the  issue ;  and 
there  the  amount  must  be  strictly  proved  as  laid.  For  example, 
to  a  declaration  in  assumpsit  for  10/.  4s.  and  other  sums,  the  de- 
fendant pleaded  as  to  all  but  41.  7s.  6d.  the  general  issue ;  and 

(c)  Indebitatus  assumpsit  is  that  species  of  the  action  of  assumpsit 
in  which  the  plaintiff  first  alleges  a  debt  and  then  a  promise  in  con- 
sideration of  the  debt.     The  promise  so  laid  is  generally  an  implied 
one  only. 

(d)  Crispin  v.  Williamson,  8  Taunt.  107. 


12.  Full    details    can    be    obtained    in    Virginia    and    West    Virginia 
by  calling  for  a  bill  of  particulars.     Code,  §  3249;   Code,   W.  Va.,  § 
3969. 

13.  The  amount  laid  in  the  ad  damnum  clause,  however,  need  not 
be  large  enough  to  cover  the  interest  on  the  principal   claimed.     It 
is   sufficient  if  covers   the   principal.      Ga.   Home    Ins.    Co.  v.    Goode, 
95  Va.  761,  30  S.   E.  366.     It  has  been  held,  however,  that  after  ver- 
dict the   ad  damnum  may  be  increased  by  amendment  to  cover  the 
recovery.      Brown   v.    Smith,   24   111.    196;   Tomlins   v.    Earnshaw,    112 
111.  311;  or  a  remittitur  may  be  entered  for  the  excess.     Crud  v.  Lack- 
land, 67  Mo.  619;   White  v.  Canadee,  25  Ark.  41;   Andrew's   Stephen 
(2d  Ed.)   468. 


§  466  MUST  SPECIFY  THE;  NAMES  OF  PERSONS  925 

i 

as  to  the  41.  7s.  6d.  a  tender.  The  plaintiff  replied  that,  after  the 
cause  of  action  accrued  and  before  the  tender,  the  plaintiff  de- 
manded the  said  sum  of  41.  7s.  6d.  which  the  defendant  refused 
to  pay;  and  on  issue  joined  it  was  proved  that  the  plaintiff  had 
demanded  not  41.  7s.  6d.  but  the  whole  101.  4s.  This  proof  was 
held  not  to  support  the  issue,  (e) 

With  respect  to  the  allegation  of  quality,  this  generally  requires 
to  be  strictly  proved  as  laid. 

[This  is  because  it  is  descriptive.  The  quality  of  a  thing  is 
its  kind.  Thus  in  detinue  for  a  horse,  the  plaintiff  would  not  be 
permitted  to  prove  the  detention  of  a  cow.  So  time  may  be  de- 
scriptive, as  in  the  statement  of  the  date  or  time  of  payment  of 
a  note ;  and  place  may  be  descriptive  as  where  a  note  is  de- 
scribed as  payable  at  the  First  National  Bank  of  Richmond,  Va. 
In  all  such  cases  the  time,  quality  and  quantity  are  material,  and 
must  be  proved  as  alleged.] 

RULE  IV. 

§  466.    The  pleadings    must   specify   the    names  of  per- 
sons^/) 

First,  this  rule  applies  to  the  parties  to  the  suit. 

The  declaration  must  set  forth  accurately  the  Christian  name 
and  surname  both  of  the  plaintiff  and  defendant.  If  either  party 
have  a  name  of  dignity,  such  as  Earl,  etc.,  he  must  be  described 
accordingly;  and  an  omission  or  mistake  in  such  description  has 
the  same  effect  as  in  the  Christian  name  and  surname  of  any  or- 
dinary person,  (^r)  A  mistake  or  omission  of  the  Christian  or 
surname  of  either  party  in  actions  real  or  personal  was  formerly 
ground  for  plea  in  abatement.  But  by  3  &  4  W.  4,  c.  42,  s.  11,  no 
plea  in  abatement  for  a  misnomer  shall  be  allowed  in  any  per- 
sonal action ;  but  in  all  cases  in  which  a  misnomer  would,  but  for 
this  act,  have  been  pleadable  in  abatement,  the  defendant  shall  be 
at  liberty  to  cause  the  declaration  to  be  amended  at  the  costs  of 

O)   Rivers  v.  Griffith,  5  Barn.  &  Aid.  630. 

(/)  Com.  Dig.,  Abatement  (E.  18),  (E.  19),  (F.  17),  (F.  18);  Com. 
Dig.,  Pleader  (c.  18);  Bract.  301b. 

(g)   Com.   Dig.,  Abatement    (E.  20),   (F.   19). 


926  CERTAINTY  OF  ISSUE  §   467 

the  plaintiff,  by  inserting  the  right  name.14  This  is  to  be  done 
by  taking  out  a  summons  before  a  judge,  founded  on  an  affidavit 
of  the  right  name ;  and  in  case  such  summons  shall  be  discharged, 
the  costs  of  such  application  shall  be  paid  by  the  party  applying, 
if  the  judge  shall  think  fit. 

Secondly,  the  rule  relates  to  persons  not.  parties  to  the  suit,  of 
whom  mention  is  made  in  the  pleading. 

The  names  of  such  persons,  viz,  the  Christian  name  and  sur- 
name, or  name  of  dignity,  must  in  general  be  given;  but  if  not 
within  the  knowledge  of  the  party  pleading,  an  allegation  to  that 
effect  should  be  made,  and  such  allegation  will  excuse  the  omis- 
sion of  name. (h) 

§  467.    Misnomer. 

A  mistake  in  the  name  of  a  party  to  the  suit  cannot  be  ob- 
jected to  as  a  variance  at  the  trial ;  but  the  name  of  a  person  not 
party,  is  a  point  on  which  the  proof  must  correspond  with  the 
averment,  under  peril  of  a  fatal  variance.  Thus,  where  a  bill  of 
exchange  drawn  by  John  Couch  was  declared  upon  as  drawn  by 
John  Crouch,  and  the  defendant  pleaded  the  general  issue,  the 
plaintiff  was  non-suited.  («)  So  where  the  declaration  stated 
that  the  defendant  went  before  Richard  Cavendish  Baron  Wa- 
terpark,  of  Wa\terfork,  one  of  the  justices,  etc.,  for  the  county  of 
Stafford,  and  falsely  charged  the  plaintiff  with  felony,  etc.,  and 
upon  the  general  issue  it  appeared  in  evidence  that  the  charge  was 
made  before  Richard  Cavendish  Baron  Waterpark,  of  Water- 
park,  this  was  held  a  fatal  variance  in  the  name  of  dignity.  (/) 

[It  is  correctly  stated  that  pleadings  should  accurately  set 
forth  the  Christian  names,  as  well  as  the  surnames,  of  parties  and, 
third  persons,  yet  the  right  to  sue  by  initials  has  long  been  rec- 
ognized, and  though  a  loose  practice,  it  is  a  very  common  one. 

(h)  Buckley  v.  Rice  Thomas,  Plow.  128;  Rowe  v.  Roach,  1  M. 
&  S.  304. 

(t)  Whitwell  v.  Bennett,  3  Bos.  &  Pul.  559.  See,  also,  Bowditch 
v.  Mawley,  1  Camp.  195;  Hutchinson  v.  Piper,  4  Taunt.  810. 

(;')  Walters  v.   Mace,  2   Barn.    &  Aid.   756. 


14.  Similar  statutes  exist  in  Va.  and  W.  Va.     Va.  Code,  §  3258;  W. 
Va.    Code,    §    3834. 


§   468  THE  PLEADINGS  MUST  SHOW  TITLE  927 

While  a  misnomer  of  a  third  person  will  cause  a  fatal  variance 
if  not  corrected,  the  courts  are  extremely  liberal  in  the  matter  of 
allowing  amendments,  and  if  at  the  trial  it  is  discovered  that  the 
pleader  has  made  a  mistake  in  the  name  of  a  person,  he  will  gen- 
erally be  allowed  to  correct  it  on  motion.  Whether  or  not  the 
opposite  party  should  be  granted  a  continuance  when  such  an 
amendment  is  allowed,  rests  largely  in  the  discretion  of  the  trial 
court.  If  the  mistake  has  caused  no  surprise,  there  is  no  neces- 
sity for  a  continuance.  It  sometimes  happens  that  a  bond  or 
note  is  sued  on  and  that  the  name  of  the  party  liable  is  not  ac- 
curately given.  Usually  the  evidence  of  debt  is  filed  with  the 
declaration,  and  where  such  is  the  case,  mere  mistakes  in  the 
names,  and  the  like,  are  readily  corrected  without  surprise  or  in- 
justice to  the  defendant,  and  the  adverse  party  is  allowed  to 
amend,  as  of  course,  and  proceed  with  the  trial  as  if  no  such  mis- 
take had  been  made.] 

RULE  V. 
§  468.    The  pleadings  must  show  title.  (£) 

When  in  pleading,  any  right  or  authority  is  set  up  in  respect  of 
property  personal  or  real,  some  title  to  that  property  must  of 
course  be  alleged  in  the  party,  or  in  some  other  person  from 
whom  he  derives  his  authority.  So  if  a  party  be  charged  with 
any  liability  in  respect  of  property  personal  or  real,  his  title  to 
that  property  must  be  alleged. 

It  is  proposed,  first,  to  consider  the  case  of  a  party's  alleging 
title  in  himself,  or  in  another  whose  authority  he  pleads;  next, 
that  of  his  alleging  it  in  his  adversary. 

I.  Of  the  case  where  a  party  alleges  title  in  himself,  or  in  an- 
other whose  authority  he  pleads. 

In  this  case  the  title  must  in  general  be  fully  and  particularly 
alleged.  With  respect  to  the  manner  of  its  allegation,  more  spe- 
cifically considered,  it  is  to  be  observed,  that  there  are  certain 
forms  used  in  pleading  appropriate  to  each  different  kind  of  title, 
according  to  all  the  different  distinctions  as  to  the  tenure,  the 
kind  or  quantity  of  estate,  the  time  of  enjoyment,  the  number  of 

(»  Com.  Dig.,  Pleader  (3  m.  9);  Bract.  372b,  373b;  2  Saund.  401. 


928  CERTAINTY  OF  ISSUE  §    469 

owners,  and  the  manner  of  derivation  or  acquisition.  (/)  These 
forms  are  too  various  to  be  here  stated :  and  it  will  be  sufficient  to 
refer  the  reader  to  the  copious  stories  in  the  printed  prece- 
dents, (m) 

***** 
There  are  also  certain  general  rules  relative  to  the  manner  of 
showing  title,  in  pleading,  of  which  it  will  be  useful  to  give  some 
account. 

§  469.    Derivation  of  title. 

There  is  a  leading  distinction  on  this  subject  between  estates 
in  fee  simple  and  particular  estates. 

In  general  it  is  sufficient  to  state  a  seizin  in  fee  simple — per  se; 
that  is,  simply  to  state  (according  to  the  usual  form  of  alleging 
that  title)  that  the  party  was  "seized  in  his  demesne  as  of  fee  of 
and  in  a  certain  messuage,"  etc.,  without  showing  the  derivation, 
or  (as  it  is  expressed  in  pleading)  the  commencement  of  the  es- 
tate. («)  For  if  it  were  requisite  to  show  from  whom  the  present 
tenant  derived  his  title,  it  might  be  required,  on  the  same  prin- 
ciple, to  show  from  whom  that  person  derived  his,  and  so  ad 
infinitum.  Besides,  as  mere  seizin  will  be  sufficient  to  give  an 
estate  in  fee  simple,  the  estate  may  for  anything  that  appears, 
have  had  no  other  commencement  than  the  seizin  itself,  which 
is  alleged.  So,  though  the  fee  be  conditional  or  determinable 
on  a  certain  event,  yet  a  seizin  in  fee  may  be  alleged,  without 
showing  the  commencement  of  the  estate. (o) 

However,  it  is  sometimes  necessary  to  show  the  derivation  of 
the  fee ;  viz,  where  in  the  pleading  the  seizin  has  already  been 
alleged  in  another  person,  from  whom  the  present  party  claims. 
In  such  case,  it  must  of  course  be  shown  how  it  passed  from  one 
of  these  persons  to  the  other.  Thus,  in  debt  or  covenant  brought 
on  an  indenture  of  lease  by  the  heir  of  the  lessor,  the  plaintiff 
having  alleged  that  his  ancestor  was  seized  in  fee,  and  made  the 

(/)   Vide  2  Bl.  Com.   103;  2  Chitty,  193,  232,   1st   Ed. 
(m)   See  2   Chitty,  Ibid. 

O)    Co.   Litt.   303b;   Savage  v.   Hawkins,   Cro.   Car.   571. 
(o)   Doct.  PI.  287. 


§   470  PARTICULAR  ESTATES  929 

lease,  must  proceed  to  show  how  the  fee  passed  to  himself,  viz, 
by  descent.  So  if  in  trespass  the  defendant  plead  that  E.  F.,  be- 
ing seized  in  fee  demised  to  G.  H.,  under  whose  command  the 
defendant  justifies  the  trespass  on  the  land  (giving  color)  ;  and 
the  plaintiff  in  his  replication  admits  E.  F.'s  seizin,  but  sets  up  a 
subsequent  title  in  himself  to  the  same  land  and  fee  simple,  prior 
to  the  alleged  demise,  he  may  show  the  derivation  of  the  fee  from 
E.  F.  to  himself  by  conveyance  antecedent  to  the  lease  under 
which  G.  H.  claims.  (/>) 

§  470.    Particular  estates. 

With  respect  to  particular  estates  the  general  rule  is  that  the 
commencement  of  particular  estates  must  be  shown. (q)  If, 
therefore,  a  party  sets  up  in  his  own  favor  an  estate  tail,  an  es- 
tate for  life,  a  term  of  years,  or  a  tenancy  at  will,  he  must  show 
the  derivation  of  that  title  from  its  commencement :  that  is,  from 
the  last  seizin  in  fee  simple ;  and  if  derived  by  alienation  or  con- 
veyance, the  substance  and  effect  of  such  conveyance  should  be 
precisely  set  forth. 

***** 

To  the  rule  that  the  commencement  of  particular  estates  must 
be  shown,  there  is  this  exception,  that  it  need  not  be  shown  where 
the  title  is  alleged  by  way  of  inducement  only.(r)  Thus,  if  an 
action  of  debt  or  covenant  be  brought  on  an  indenture  of  lease 
by  the  executor  or  assignee  of  a  lessor,  who  had  been  entitled  for 
a  term  of  years,  it  is  necessary  in  the  declaration  to  state  the  title 
of  the  lessor,  in  order  to  show  that  the  plaintiff  is  entitled  to 
maintain  the  action  as  his  representative  or  assignee.  But  as  the 
title  is  in  that  case  alleged  by  way  of  inducement  only  (the  action 
being  mainly  founded  on  the  lease  itself),  the  particular  estate 
for  years  may  be  alleged  in  the  lessor,  without  showing  its  com- 
mencement. 

(/»)   See  Upper  Bench  Precedents,  196,  cited  9  Went.  —     i 

(g)   Co.   Litt.  303b;   Scilly  v.   Dally,  2   Salk.   562;   Garth.  444,   S.   C.; 

Searl  r.   Bunnion,  2  Mod.  70;  Johns  v.  Whitley,  3  Wils.  72;   Hendy 

r.   Stephenson,   10   East,  60;   Rast.   Ent.   656. 

(r)  Com.  Dig.,  Pleader  (E.  19),  (C.  43);  Blockley  v.  Slater.  Lutw. 

120;   Searl  v.  Bunnion,  2   Mod.  70;   Scilly  v.  Dally,  Carth,  444. 

—59 


930  CERTAINTY  OF  ISSUE  §    471 

§  471.    Additional  rules  on  derivation  of  title. 

On  the  subject  of  the  deriifation  of  title,  the  following  addi- 
tional rules  may  be  collected  from  the  books : 

First,  Where  a  party  claims  by  inheritance,  he  must  in  general 
show  how  he  is  heir,  viz,  as  son  or  otherwise ](s}  and  if  he  claim 
by  mediate,  not  immediate  descent,  he  must  show  the  pedigree; 
for  example,  if  he  claims  as  nephew,  he  must  show  how 
nephew,  (t) 

Secondly,  Where  a  party  claims  by  conveyance  or  alienation, 
the  nature  of  the  conveyance  and  alienation  must  in  general  be 
stated,  as  whether  it  be  by  devise,  feoffment,  etc.(w) 

Thirdly,  The  nature  of  the  conveyance  or  alienation  should  be 
stated  according  to  its  legal  effect,  rather  than  its  form  of  words. 
This  depends  on  a  more  general  rule,  which  we  shall  have  occa- 
sion to  consider  in  another  place,  viz,  "that  things  are  to  be 
pleaded  according  to  their  legal  effect  or  operation.  For  the 
present,  the  doctrine,  as  applicable  to  conveyances,  may  be  thus 
illustrated  :  In  pleading  a  conveyance  for  life  with  livery  of  seizin, 
the  proper  form  is  to  allege  it  as  a  "demise"  for  lif €,(?/)  for 
such  is  its  effect  in  proper  legal  description.  So  a  conveyance  in 
tail,  with  livery,  is  always  pleaded  on  the  same  principle  as  a 
"gift"  in  tail;(w)  and  a  conveyance  of  the  fee,  with  livery,  is 
described  by  the  term  "enfeoffed."(.r)  And  such  would  be  the 
form  of  pleading  whatever  might  be  the  words  of  donation  used 
in  the  instrument  itself,  which  in  all  the  three  cases  are  often 
the  same,  viz,  those  of  "give"  and  "grant."  (y)  So  in  a  convey- 
ance by  lease  and  release,  though  the  words  of  the  deed  of  re- 
lease be  "grant,  bargain,  sell,  alien,  release,  and  confirm,"  yet  it 

(s)  Denham  v.  Stephenson,  1  Salk.  355;  Duke  of  Newcastle  v. 
Wright,  1  Lev.  190;  1  Lord  Raym.  202. 

(t)  Dunsday  v.  Hughes,  3  Bos.  &  Pul.  453;  Blackborough  v.  Davis, 
12  Mod.  619. 

(w)  ,See  Com.   Dig.,   Pleader   (E.  23),   (E.   24). 

(v)   Rast.   Ent.  647a,  lid. 

(w)   See  Co.   Ent.,  tit.   Formedon,  etc. 

(*)   Upper   Bench    Free.   196.     See   2   Chitty,   214;    Co.    Litt,   9a.   - 
8   Reps.   82b. 

(y)  "Do  or  dedi  is  the  aptest  word  of  feoffment."     Co.  Litt.  9a. 


§    471  ADDITIONAL  RULES  ON  DERIVATION  OF  TITLE  931 

should  be  pleaded  as  a  release  only,  for  that  is  the  legal  effect,  (z)  • 
So  a  surrender  (whatever  words  are    used    in   the  instrument) 
should  be  pleaded  with  sursum  reddidit  which  alone  in  pleading 
describes  the  operation  of  a  conveyance  as  a  surrender. 

Fourthly,  Where  the  nature  of  the  conveyance  is  such  that  it 
would  at  common  law  be  valid  without  deed  or  writing,  there  no 
deed  or  writing  need  be  alleged  in  the  pleading,  though  such  doc- 
ument may  in  fact  exist;  but  where  the  nature  of  the  conveyance 
requires  at  common  law  a  deed  or  other  written  instrument,  such 
instrument  must  be  alleged. (a)  Therefore  a  conveyance  with 
livery  of  seizin,  either  in  fee,  tail,  or  for  life,  is  pleaded  without 
alleging  any  charter  or  other  writing  of  feoffment,  gift,  or  de- 
mise, whether  such  instrument  in  fact  accompanied  the  convey- 
ance or  not.  For  such  conveyance  might  at  common  law  be 
made  by  parol  only;(&)  and  though  by  the  statute  of  frauds,  29 
Car.  II,  c.  3,  s.  1,  it  will  not  now  be  valid  unless  made  in  writing, 
yet  the  form  of  pleading  remains  the  same  as  before  the  act  of 
parliament. (c)  On  the  other  hand,  a  devise  of  lands  (which  at 
common  law  was  not  valid,  and  authorized  only  by  the  statutes 
32  Hen.  8,  c.  1,  and  34  Hen.  8,  c.  5),  must  be  alleged  to  have 
been  made  in  writing ;(d)  which  is  the  only  form  in  which  the 
statutes  authorize  it  to  be  made. 

So  if  a  conveyance  by  way  of  grant  be  pleaded,  a  deed  must  be 
alleged ;(e)  for  matters  that  "lie  in  grant"  (according  to  the 
legal  phrase)  can  pass  by  deed  only.  (/) 

There  is  one  case,  however,  in  which  a  deed  is  usually  alleged 
in  pleading,  though  not  necessary  at  common  law  to  the  convey- 
ance, and  which,  therefore,  in  practice  at  least,  forms  an  excep- 
tion to  the  above  rule.  For  in  making  title  under  a  lease  for 

(r)   2  Chitty,  220,  note  (i) ;  1  Arch.  127;  3  Went.  483,  515. 

(a)  Vin.   Ab.,    Faits   or   Deeds    (M.    a,   11). 

(&)  Vin.  Ab.,  Feoffment   (Y.);   Co.   Litt.   121b. 

(c)  This  depends  upon  a  more  general  rule,  viz,  that  regulations 
introduced  by  statute,  do  not  alter  the  form  of  pleading  at  common 
law.  This  rule  will  be  noticed  hereafter  in  its  proper  place. 

(rf)   1    Saund.    276a,    n.    2. 

O)   Porter  v.  Gray,  Cro.  Eliz.  245;  1  Saund.  234,  n.  3. 

(/)  Vin.  Ab.,   tit.    Grants   (G.   a.). 


932  CERTAINTY    OF    ISSUE  §    472 

years  by  indenture,  it  is  usual  to  plead  the  indenture, (g)  though 
the  lease  was  good  at  common  law,  by  parol,  and  needs  to  be  in 
writing  only  where  the  term  is  of  more  than  three  years  duration, 
and  then  only  by  the  statute  of  frauds. 

On  the  other  hand,  in  the  case  where  a  demise  by  husband  and 
wife  is  pleaded,  it  seems  that  it  is  not  necessary  to  show  that  it 
was  by  deed;  and  yet  the  lease,  if  without  deed,  is  at  common 
law  void  as  to  the  wife,  after  the  death  of  the  husband,  and  is 
not  within  the  stat.  32  Hen.  8,  c.  28,  s.  1,  which  gives  efficacy  to 
leases  by  persons  having  an  estate  in  right  of  their  wives,  etc., 
only  where  such  leases  are  "by  writing  indented  under  seal." 
The  reason  seems  to  be,  that  a  lease  by  husband  and  wife,  though 
without  deed,  is  good  during  the  life  of  the  husband,  (h) 

§  472.    Plea  of  liberum  tenementum. 

Thus  far  with  respect  to  the  allegation  of  title  in  general. 
There  are,  however,  certain  excepted  cases  in  which  different  and 
less  precise  modes  of  laying  title  are  permitted. 

1.  It  is  occasionally  sufficient  to  allege  what  may  be  called  a 
general  freehold  title. 

In  a  plea  in  trespass  quare  clausum  fregit,  or  an  avowry  in  re- 
plevin, (i)  if  the  defendant  claim  an  estate  of  freehold  in  the  locus 
in  quo,  he  is  allowed  to  plead  generally  that  the  place  is  his 
"close,  soil,  and  freehold."  This  is  called  the  plea  or  avowry  of 
liberum  tenementum,  and  it  may  be  convenient  here  to  give  the 
form  of  it. 

PLEA. 

Of  Liberum  Tenementum.^5 
In  Trespass  Quare  Clausum  Fregit. 
And  for  a  further  plea  in  this  behalf  as  to  the  breaking  and 

(g)  2   Chitty,   555,   example. 

(h)  2  Saund.  189a,  n.    (9);   Wiscot's  Case,  2   Rep.   61b;   Dyer,  91b; 
Bateman  v.  Allen,  Cro.   Eliz.  438;   Childs  v.  Wescott,  id.  482. 
(t)   1  Saund.  347d,  n.  6. 


15.  In   some   states  it  is  held  that  the  plea  of  liberum  tenementum 
must  be  specially  plead  to  put  the  title  in  issue,  and  that  the  title 


§    472  PI,EA  OP  LIBERUM  TENEMENTUM  933 

entering  the  said  close,  in  which,  etc.,  in  the  said  declaration 
mentioned,  and  with  feet  in  walking,  treading  down,  trampling 
upon,  consuming  and  spoiling  the  grass  and  herbage  then  and 
there  growing,  the  said  defendant  says,  that  the  said  plaintiff 
ought  not  to  have  or  maintain  his  aforesaid  action  thereof  against 
him ;  because  he  says,  that  the  said  close  in  the  said  declaration 
mentioned,  and  in  which,  etc.,  now  is,  and  at  .the  several  times, 
when  etc.,  was  the  close,  soil,  and  freehold  of  him  the  said  de- 
fendant. Wherefore  he  the  said  defendant  at  the  said  several 
times  when,  etc.,  broke  and  entered  the  said  close  in  which,  etc., 
and  with  feet  in  walking  trod  down,  trampled  upon,  consumed, 
and  spoiled  the  grass  and  herbage  then  and  there  growing,  as 
he  lawfully  might  for  the  cause  aforesaid,  which  are  the  same 
trespasses  in  the  introductory  part  of  this  plea  mentioned, 
and  whereof  the  said  plaintiff  hath  above  complained.  And  this 
the  said  defendant  is  ready  to  verify.  Wherefore  he  prays  judg- 
ment if  the  said  plaintiff  ought  to  have  or  maintain  his  aforesaid 
action  thereof  against  him.(/) 

This  allegation  of  a  general  freehold  title  will  be  sustained  by 
proof  of  any  estate  of  freehold,  whether  in  fee,  in  tail,  or  for 
life  only,  and  whether  in  possession,  or  expectant  on  the  deter- 
mination of  a  term  of  years.  (&)  But  it  does  not  apply  to  the 
case  of  a  freehold  estate  in  remainder  or  reversion  expectant  on 
a  particular  estate  of  freehold,  nor  to  copyhold  tenure. 

The  plea  of  avowry  of  liberum  tenementum  is  the  only  case 
of  usual  occurrence  in  modern  practice  in  which  the  allegation  of 

(;)   2   Chitty,   551. 

(&)  See  5  Hen.  7,  lOa,  PI.  2,  which  shows  that  where  there  is  a  lease 
for  years,  it  must  be  replied  in  confession  and  avoidance,  and  is  no 
ground  for  traversing  the  plea  of  liberum  tenementum. 


cannot  be  drawn  in  issue  by  plea  of  not  guilty  in  an  action  of  tres- 
pass quaere  clausum  fregit.  The  rule  is  otherwise  in  Virginia,  though 
the  question  was  decided  by  a  divided  court,  two  judges  out  of  five 
holding  that  the  title  was  not  put  in  issue  by  a  plea  of  not  guilty. 
The  majority  of  the  court,  however,  held  that  the  judgment  in  an 
action  of  trespass  to  recover  the  value  of,  or  damages  to,  timber 
cut  from  the  land  was  conclusive  of  the  question  of  title  to  the  land 
so  far  as  it  affected  the  plaintiff's  right  to  recover  such  value  or 
damages,  even  though  no  plea  of  liberum  tenementum  was  filed,  but 
only  the  plea  of  not  guilty.  Douglas  Land  Company  v.  T.  W. 
Thayer  Company,  113  Va.  238,  74  S.  E.  215. 


934  CERTAINTY  OF  ISSUE  §  473 

a  general  freehold  title,  in  lieu  of  a  precise  allegation  of  title  is 
sufficient.  (/)16 

This  plea  may  appear  at  first  sight  opposed  to  principle,  as 
giving  no  color  to  the  plaintiff.  It  has  been  long  ago  decided, 
however,  that  it  is  not  open  to  this  objection ;  because,  though  it 
asserts  the  freehold,  to  be  in  the  defendant,  it  does  not  exclude  the 
possibility  of  the  plaintiff's  being  possessed  of  the  premises  for 
a  term  of  years;  and  it  leaves  him,  therefore,  a  sufficient  color  to 
maintain  the  action.  The  same  doctrine  is  also  held  with  respect 
to  a  plea  that  the  defendant  is  seized  in  fee;  for  this,  like  the 
general  plea  of  freehold,  is  compatible  with  the  plaintiff's  posses- 
sion for  a  term'of  years.  But  (as  we  have  elsewhere  seen)  a 
plea  that  J.  S.  was  seized  in  fee,  and  demised  to  the  defendant 
for  years,  is  bad  for  want  of  color,  unless  express  color  be  given. 

In  alleging  a  general  freehold  title,  it  is  not  necessary  (as  ap- 
pears by  the  above  example)  to  show  its  commencement. 

§  473.    Title  of  possession. 

2.    It  is  often  sufficient  to  allege  a  title  of  mere  possession. 

The  form  of  laying  a  title  of  possession,  in  respect  of  goods 
and  chattels,  is  either  to  allege  that  they  were  the  "goods  and 
chattels  of  the  plaintiff,"  or  that  he  was  "lawfully  possessed  of 
them  as  of  his  own  property."  With  respect  to  corporeal  here- 
ditaments,  the  form  is,  either  to  allege  that  the  close,  etc.,  was  the 
"close  of"  the  plaintiff,  or  that  he  was  "lawfully  possessed  of  a 
certain  close,"  etc.  With  respect  to  incorporeal  hereditaments,  a 
title  of  possession  is  generally  laid,  by  alleging  that  the  plaintiff 
was  possessed  of  the  corporeal  thing,  in  respect  of  which  the 
right  is  claimed,  and  by  reason  thereof  was  entitled  to  the  right  at 
the  time  in  question ;  for  example,  that  he  "was  possessed  of  a 
certain  messuage,  etc.,  and  by  reason  thereof,  during  all  the  time 
aforesaid,  of  right  ought  to  have  had  common  of  pasture,  etc. 

(/)  See  1  Saund.  347d,  n.  6.  This  form  of  allegation  occurred, 
however,  in  the  now  disused  actions  of  assize,  the  count  or  plaint 
in  which  lays  only  a  general  freehold  title.  Dock.  PL  289. 


16.  Fort  Dearborn  Lodge  v.  Klein,  115  111.  177,  3  N.  E.  272. 


§§  474-475     WHEN  TITLE  OF  POSSESSION  is  SUFFICIENT  935 

§  474.    When  title  of  possession  is  applicable. 

A  title  of  possession  is  applicable  that  is,  will  be  sufficiently 
sustained  by  the  proof  in  all  cases  where  the  interest  is  of  a  pres- 
ent and  immediate  kind.  Thus  when  a  title  of  possession  is  al- 
leged with  respect  to  goods  and  chattels,  the  statement  will  be 
supported  by  proof  of  any  kind  of  present  interest  in  them, 
whether  that  interest  be  temporary  and  special,  or  absolute  in  its 
nature — as  for  example,  whether  it  be  that  of  a  carrier  or  finder 
only,  or  that  of  an  owner  and  proprietor. (m)  So,  where  a  title 
in  possession  is  alleged  in  respect  of  corporeal  or  incorporeal 
hereditaments,  it  will  be  sufficiently  maintained  by  proving  any 
kind  of  estate  in  possession,  whether  fee  simple,  fee  tail,  for  life, 
for  term  of  years,  or  otherwise.  On  the  other  hand,  with  re- 
spect to  any  kind  of  property,  a  title  of  possession  would  not  be 
sustained  in  evidence,  by  proof  of  an  interest  in  remainder  or 
reversion  only:  and  therefore,  when  the  interest  is  of  that  de- 
scription, the  preceding  forms  are  inapplicable ;  and  title  must  be 
laid  in  remainder  or  reversion  according  to  the  fact. 

§  475.    When  title  of  possession  is  sufficient. 

Where  a  title  of  possession  is  applicable,  the  allegation  of  it  is 
in  many  cases  sufficient  in  pleading,  without  showing  title  of  a 
superior  kind.  The  rule  on  this  subject  is  as  follows — that  it  is 
sufficient  to  allege  possession  as  against  a  wrongdoer  ;(n)  or,  in 
other  words,  that  it  is  enough  to  lay  a  title  of  possession  against 
a  person,  who  is  stated  to  have  committed  an  injury  to  such  pos- 
session, having  as  far  as  it  appears  no  title  himself.  Thus,  if  the 
plaintiff  declares  in  trespass,  for  breaking  and  entering  his  close, 
or  in  trespass  on  the  case,  for  obstructing  his  right  of  way,  it  is 
enough  to  allege  in  the  declaration,  in  the  first  case,  that  it  is  the 
"close  of  the  plaintiff,"  in  the  second  case,  that  "he  was  possessed 
of  a  certain  messuage,  etc.,  and  by  reason  of  such  possession,  of 
right  ought  to  have  had  a  certain  way,"  etc.  For  if  the  case  was, 

(»0   2   Saund.   47a,   n.   1. 

(n)  Com.  Dig.,  Pleader  (C.  39),  (C.  41);  Taylor  v.  Eastwood,  1 
East.  212;  Grimstead  v.  Marlowe,  4  T.  R.  717;  Greenhow  v.  Ilsley, 
Willes  619;  Waring  v.  Griffiths,  1  Burr.  440;  Langford  v.  Webber, 
3  Mod.  132. 


936  CERTAINTY    OF    ISSUE  §    475 

that  the  plaintiff  being  possessed  of  the  close,  the  defendant  hav- 
ing himself  no  title,  broke  and  entered  it,  or,  that  the  plaintiff 
being  possessed  of  a  messuage  and  right  of  way,  the  defendant 
being  without  title,  obstructed  it,  then  whatever  was  the  nature 
and  extent  of  the  plaintiff's  title  in  either  case,  the  law  will  give 
him  damages  for  the  injury  to  his  possession ;  and  it  is  the  pos- 
session therefore,  only,  that  needs  to  be  stated.  It  is  true  that  it 
does  not  yet  appear  that  the  defendant  had  no  title,  and,  by  his 
plea,  he  may  possibly  set  up  one  superior  to  that  of  the  plaintiff ; 
but  as  on  the  other  hand,  it  does  not  yet  appear  that  he  had  title, 
the  effect  is  the  same;  and  till  he  pleads,  he 'must  be  considered 
as  a  mere  wrongdoer;  that  is,  he  must  be  taken  to  have  com- 
mitted an  injury  to  the  plaintiff's  possession  without  having  any 
right  himself.  Again,  in  an  action  of  trespass  for  assault  and 
battery,  if  the  defendant  justifies  on  the  ground  that  the  plaintiff 
wrongfully  entered  his  house,  and  was  making  a  disturbance 
there,  and  that  the  defendant  gently  removed  him,  the  form  of 
the  plea  is  that  "the  defendant  was  lawfully  possessed  of  a  cer- 
tain dwelling-house,  etc.,  and  being  so  possessed  the  said  plain- 
tiff was  unlawfully  in  the  said  dwelling-house,"  etc. ;  and  it  is  not 
necessary  for  the  defendant  to  show  any  title  to  the  house,  be- 
yond this  of  mere  possession.  (0)  For  the  plaintiff  has  at  present 
set  up  no  title  at  all  to  the  house,  and  on  the  face  of  the  plea  he 
has  committed  an  injury  to  the  defendant's  possession,  without 
having  any  right  himself.  So  in  an  action  of  trespass  for  seizing 
cattle,  if  the  defendant  justifies  on  the  ground  that  the  cattle 
were  damage- feasant  on  his  close,  it  is  not  necessary  for  him  to 
show  any  title  to  his  close  except  that  of  mere  possession.  (/>) 

[So,  in  an  action  of  trespass  on  the  case  to  recover  damages 
for  injury  caused  by  the  overflow  of  surface  water  upon  a  cer- 
tain lot  of  the  plaintiff's,  where  the  declaration  alleged  that  A  C 
was  seized,  and  together  with  the  plaintiff,  M  C,  her  husband, 
has  been  during  all  of  that  time,  and  still  is,  possessed  of  a  lot  of 
ground,  it  was  held  to  be  a  sufficient  allegation  of  the  plaintiff's 

(0)  2   Chitty,   529. 

(/>)  1  Saund.  221,  n.  (1);  2  Saund.  285,  n.  3;  Anon.,  2  Salk.  643; 
Searl  v.  Bunnion,  2  Mod.  70;  Langford  v.  Webber,  3  Mod.  132; 
Osway  v.  Bristow,  10  Mod.  37;  2  Bos.  &  Pul.  361,  n.  (a). 


§  476  ALLEGING  TITLE:  IN  ADVERSARY  937 

title,  as  possession  alone  is  sufficient  to  maintain  trespass  or  case 
against  a  wrongdoer.]17 

It  is  to  be  observed  however,  with  respect  to  this  rule,  as  to  al- 
leging possession  against  a  wrongdoer,  that  it  seems  not  to  hold 
in  Replevin.  For  in  that  action  it  is  held  not  to  be  sufficient  to 
state  a  title  of  possession,  even  in  a  case  where  it  would  be  allow- 
able in  Trespass,  by  virtue  of  the  rule  above  mentioned.  Thus, 
in  replevin,  if  the  defendant  by  way  of  avowry,  pleads  that  he 
was  possessed  of  a  messuage,  and  entitled  to  common  of  pasture 
as  appurtenant  thereto,  and  that  he  took  the  cattle  damage-feas- 
ant,  it  seems  that  this  pleading  is  bad ;  and  that  it  is  not  sufficient 
to  lay  such  mere  title  of  possession  in  this  action. (q)  It  is  to  be 
observed  too,  that  this  rule  has  little  or  no  application  in  real  or 
mixed  actions;  for  in  these,  an  injury  to  the  possession  is  seldom 
alleged ;  the  question  in  dispute  being,  for  the  most  part,  on  the 
right  of  possession,  or  the  right  of  property. 

§  476.    Alleging  title  in  adversary. 

II.  Having  discussed  the  case  where  a  party  alleges  title  in 
himself,  or  some  other  whose  authority  he  pleads,  next  is  to  be 
considered  the  case  where  a  party  alleges  title  in  his  adversary. 

The  rule  on  this  subject  appears  in  general  to  be  that  it  is  not 
necessary  to  allege  title  more  precisely  than  is  sufficient  to  show 
a  liability  in  the  party  charged,  or  to  defeat  his  present  claim. 
Except  as  far  as  these  objects  may  require,  a  party  is  not  com- 
pellable  to  show  the  precise  estate  which  his  adversary  holds, 
even  in  a  case  where,  if  the  same  person  were  pleading  in  his  own 
title,  such  precise  allegation  would  be  necessary.  The  reason  of 
this  difference  is,  that  a  party  must  be  presumed  to  be  ignorant 
of  the  particulars  of  his  adversary's  title,  though  he  is  bound  to 
know  his  own.  (r) 

To  answer  the  purpose  of  showing  a  liability  in  the  party 

(<?)  Hawkins  v.  Eccles,  2  Bos.  &  Pul.  359,  361,  n.  a;  2  Saund.  285, 
n.  3;  Saunders  v.  Hussey,  2  Lut.  1231;  Carth.  9;  1  Lord  Raym.  332, 
S.  C.;  1  Saund.  346e,  n.  (2). 

(r)  Rider  v.  Smith,  3  T.  R.  766;  Derisley  v.  distance,  4  T.  R.  77; 
Att'y-General  v.  Meller,  Hardr.  459. 


17.  Clay  v.  St.  Albans,  43  W.  Va.  539,  27  S.  E.  368. 


938  CERTAINTY    OF    ISSUE  §    476 

charged,  according  to  the  rule  here  given,  it  is  in  most  cases  suffi- 
cient to  allege  a  title  of  possession;  the  forms  of  which  are  sim- 
ilar to  those  in  which  the  same  kind  of  title  is  alleged  in  favor  of 
the  party  pleading. 

A  title  of  possession,  however  (as  shown  under  a  former 
head)  cannot  be  sustained  in  evidence,  except  by  proving  some 
present  interest  in  chattels  or  actual  possession  of  land.  If,  there- 
fore, the  interest  be  by  way  of  reversion  or  remainder,  it  must  be 
laid  accordingly,  and  the  title  of  possession  is  inapplicable.  So 
there  are  cases,  in  which  to  charge  a  party  with  mere  possession, 
would  not  be  sufficient  to  show  his  liability.  Thus,  in  declaring 
against  him  in  debt  for  rent,  as  assignee  for  a  term  of  years,  it 
would  not  be  sufficient  to  show  that  he  was  possessed,  but  it  must 
be  shown  that  he  was  possessed  as  assignee  of  the  term. 

Where  a  title  of  possession  is  thus  inapplicable  or  insufficient 
and  some  other  or  superior  title  must  be  shown,  it  is  yet  not  nec- 
essary to  allege  the  title  of  an  adversary  with  as  much  precision 
as  in  the  case  where  a  party  is  stating  his  own,(j)  and  it  seems 
sufficient  that  it  be  laid  fully  enough  to  show  the  liability  charged. 
Therefore,  though  it  is  the  rule  with  respect  to  a  man's  own  title 
that  the  commencement  of  particular  estates  should  be  shown, 
unless  alleged  by  way  of  inducement,  yet  in  pleading  the  title  of 
an  adversary,  it  seems  that  this  is  in  general  not  necessary.  So 
in  cases  where  it  happens  to  be  requisite  to  show  whence  the 
adversary  derived  his  title,  this  may  be  done  with  less  precision 
than  where  a  man  alleges  his  own.  And  in  general  it  is  sufficient 
to  plead  such  a  title  by  a  que  estate,  that  is,  to  allege  that  the  op- 
posite party  has  the  same  estate,  as  has  been  precedently  laid  in 
some  other  person,  without  showing  in  what  manner  the  estate 
passed  from  the  one  to  the  other.  Thus  in  debt,  where  the  de- 
fendant is  charged  for  rent  as  the  assignee  of  the  term  after 
several  mesne  assignments,  it  is  sufficient,  after  stating  the  origi- 
nal demise,  to  allege,  that  "after  making  the  said  indenture,  and 
during  the  term  thereby  granted,  to  wit,  on  the  -  -  day  of  -  — , 
in  the  year  -  — ,  all  the  estate  and  interest  of  the  said  E.  F." 
(the  original  lessee)  "of  and  in  the  said  demised  premises,  by 

0)  Com.  Dig.,  Pleader  (C.  42);  Hill  i>.  Saunders,  4  Barn.  &  Cres. 
536. 


§    477  TITLE    MUST    BE   STRICTLY    PROVED  939 

assignment,  came  to  and  vested  in  the  said  C.  D.,"  without  fur- 
ther showing  the  nature  of  the  mesne  assignments. (t)  But  if 
the  case  be  reversed,  that  is,  if  the  plaintiff,  claiming  as  assignee 
of  the  reversion,  sue  the  lessee  for  rent,  he  must  precisely  show 
the  conveyances,  or  other  media  of  title,  by  which  he  became  en- 
titled to  the  reversion;  and  to  say  generally  that  it  came  by  as- 
signment, will  not,  in  this  case,  be  sufficient,  without  circum- 
stantially alleging  all  the  mesne  assignments. («)  Upon  the  same 
principle,  if  title  be  laid  in  an  adversary,  by  descent,  as,  for  ex- 
ample, where  an  action  of  debt  is  brought  against  an  heir  on  the 
bond  of  his  ancestor,  it  is  sufficient  to  charge  him  as  heir,  with- 
out showing  how  he  is  heir,  viz,  as  son  or  otherwise  ;(z/)  but  if 
a  party  entitle  himself  by  inheritance,  we  have  seen  that  the 
mode  of  descent  must  be  alleged. 

§  477.    Title  must  be  strictly  proved. 

The  manner  of  showing  title  both  where  it  is  laid  in  the  party 
himself,  or  the  person  whose  authority  he  pleads,  and  where  it 
laid  in  his  adversary,  having  been  now  considered,  it  may  next 
be  observed  that  the  title  so  shown  must  in  general,  when  issue 
is  taken  upon  it,  be  strictly  proved.  With  respect  to  the  allega- 
tions of  time,  quantity,  and  value,  it  has  been  seen  that  they  in 
most  cases,  do  not  require  to  be  proved  as  laid,  at  least  if  laid 
under  a  videlicet.  But  with  respect  to  title,  it  is  ordinarily  of 
the  substance  of  the  issue ;  and  therefore,  according  to  the  general 
principle  stated  in  the  first  chapter  of  this  work,  requires  to  be 
maintained  accurately  by  the  proof.  Thus  in  an  action  on  the 
case,  the  plaintiff  alleged  in  his  declaration  that  he  demised  a 
house  to  the  defendant  for  seven  years,  and  that  during  the  term, 
the  defendant  so  negligently  kept  his  fire  that  the  house  was 
burned  down :  and  the  defendant  having  pleaded  non  demisit 
modo  et  forma,  it  appeared  in  evidence  that  the  plaintiff  had 
demised  to  the  defendant  several  tenements,  of  which  the  house 

(/)  1  Saund.  112.  note  1;  Atty.-Gen.  v.  Meller,  Hardr.  459;  Duke 
of  Newcastle  r.  Wright.  1  Lev.  190;  Derisley  v.  Custance,  4  T.  R. 
77:  2  Chitty.  196. 

(M)   1  Saund.   112.  note  1;   Pitt  v.  Russell,  3  Lev.   19;   Dyer,  172,  a. 

(v)   Denham  r.  Stephenson,  1   Salk.  355. 


940  CERTAINTY    OF    ISSUE  §   478 

in  question  was  one;  but  that  with  respect  to  this  house,  it  was 
by  an  exception  in  the  lease,  demised  at  will  only.  The  court 
held,  that  though  the  plaintiff  might  have  declared  against  the  de- 
fendant as  tenant  at  will  only,  and  the  action  would  have  lain, 
yet  having  stated  a  demise  for  seven  years,  the  proof  of  a  lease 
at  will  was  a  variance,  and  that  in  substance,  not  in  form  only; 
and  on  the  ground  of  such  variance,  judgment  was  given  for  the 
defendant,  (w) 

§  478.    Estoppel  to  deny  title. 

The  rule  which  requires  that  title  should  be  shown,  having 
been  now  explained,  it  will  be  proper  to  notice  an  exception  to 
which  it  is  subject.  This  exception  is,  that  no  title  need  be 
shown  where  the  opposite  party  is  estopped  from  denying  the 
title.  Thus  in  an  action  for  goods  sold  and  delivered,  it  is  un- 
necessary, in  addition  to  the  allegation  that  the  plaintiff  sold  and 
delivered  them  to  the  defendant,  to  state  that  they  were  the  goods 
of  the  plaintiff  ;(x)  for  a  buyer  who  has  accepted  and  enjoyed 
the  goods  cannot  dispute  the  title  of  the  seller.  So  in  debt  or 
covenant  brought  by  the  lessor  against  the  lessee  on  the  cove- 
nants of  the  lease,  the  plaintiff  need  allege  no  title  to  the  prem- 
ises demised,  because  a  tenant  is  estopped  from  denying  his 
landlord's  title.  On  the  other  hand,  however,  a  tenant  is  not 
bound  to  admit  title  to  any  extent  greater  than  might  authorize 
the  lease ;  and  therefore  if  the  action  be  brought  not  by  the  lessor 
himself,  but  by  his  heir,  executor,  or  other  representative  or  as- 
signee, the  title  of  the  former  must  be  alleged,  in  order  to  show 
that  the  reversion  is  now  legally  vested  in  the  plaintiff,  in  the 
character  in  which  he  sues.  Thus,  if  he  sue  as  heir,  he  must 
allege  that  the  lessor  was  seized  in  fee,  for  the  tenant  is  not  bound 
to  admit  that  he  was  seized  in  fee ;  and  unless  he  was  so,  the 
plaintiff  cannot  claim  as  heir. 

Another  exception  to  the  general  rule  requiring  title  to  be 
shown,  has  been  introduced  by  statute,  and  is  as  follows :  In 
making  avowry  or  cognizance  in  replevin  upon  distresses  for 
rents,  quit-rents,  reliefs,  heriots,  or  other  services,  the  defendant  is 

(w)   Cudlip  v.  Rundle,  Garth.  202. 
(*)   Bull.   N.   P.   139. 


§    479       .      THE    PLEADINGS    MUST    SHOW    AUTHORITY  941 

enabled  by  the  provisions  of  the  act,  11  Geo.  2,  c.  19,  s.  22,  "to 
avow  or  make  cognizance  generally,  that  the  plaintiff  in  replevin, 
or  other  tenant  of  the  lands  and  tenements,  whereon  such  dis- 
tress was  made,  enjoyed  the  same,  under  a  grant  or  demise,  at 
such  a  certain  rent,  during  the  time  wherein  the  rent  distrained 
for  incurred;  which  rent  was  then  and  still  remains  due;  or  that 
the  place  where  the  distress  was  taken,  was  parcel  of  such  certain 
tenements  held  of  such  honor,  lordship,  or  manor,  for  which 
tenements  the  rent,  relief,  heriot,  or  other  services  distrained  for, 
was  at  the  time  of  such  distress,  and  still  remains  due ;  without 
further  setting  forth  the  grant,  tenure,  demise,  or  title  of  such 
landlord  or  landlords,  lessor  or  lessors,  owner  or  owners  of  such 
manor;  any  law  or  usage  to  the  contrary  notwithstanding." 

RULE  VI. 
§  479.    The  pleadings  must  show  authority.  (Y) 

In  general  when  a  party  has  occasion  to  justify  under  a  writ, 
warrant  or  precept,  or  any  other  authority  whatever  he  must 
set  it  forth  particularly  in  his  pleading.  And  he  ought  also  to 
show  that  he  has  substantially  pursued  such  authority. 

***** 

So  in  all  cases  where  the  defendant  justifies  under  judicial 
process,  he  must  set  it  forth  particularly  in  his  plea ;  and  it  is  not 
sufficient  to  allege  generally  that  he  committed  the  act  in  question 
by  virtue  of  a  certain  writ  or  warrant  directed  to  him.  But  on 
this  subject  there  are  some  important  distinctions  as  to  the  degree 
of  particularity  which  the  rules  of  pleading  in  different  cases  re- 
quire: 1.  It  is  not  necessary  that  any  person  justifying  under 
judicial  process  should  set  forth  the  cause  of  action  in  the  original 
suit  in  which  that  process  issued.  2.  If  the  justification  be  by 
the  officer  executing  the  writ,  he  is  required  to  plead  such  writ 
only,  and  not  the  judgment  on  which  it  was  founded ;  for  his 
duty  obliged  him  to  execute  the  former,  without  inquiring  about 

(y)  "Regularly,  whensoever  a  man  doth  anything  by  force  of  a 
warrant  or  authority,  he  must  plead  it."  Co.  Litt.  283a;  Ibid.  303b; 
Com.  Dig.,  Pleader  (E.  17);  1  Saund.  298,  rt.  1;  Lamb  v.  Mills,  4  Mod. 
377;  Matthews  v.  Gary,  3  Mod.  137;  Collet  v.  Lord  Keith,  2  East,  260; 
Selw.  N.  P.  826;  Rich.  v.  Woolley,  7  Bing.  651. 


942  CERTAINTY    OF    ISSUE  §    479 

the  validity  or  existence  of  the  latter.  But  if  the  justification  be 
by  a  party  to  the  suit,  or  by  any  stranger,  except  an  officer,  the 
judgment  as  well  as  the  writ  must  be  set  forth.  3.  Where  it  is 
an  officer  who  justifies,  he  must  show  that  the  writ  was  returned, 
if  it  was  such  as  it  was  his  duty  to  return.  But  in  general  a  writ 
of  execution  need  not  be  returned ;  and  therefore,  no  return 
of  it  need  in  general  be  alleged.  However,  it  is  said  that  "if  any 
ulterior  process  in  execution  is  to  be  resorted  to,  to  complete 
the  justification,  there  it  may  be  necessary  to  show  to  the  court 
the  return  of  the  prior  writ,  in  order  to  warrant  the  issuing  of 
the  other."  Again,  there  is  a  distinction  as  to  this  point  between 
a  principal  and  a  subordinate  officer.  "The  former  shall  not 
justify  under  the  process,  unless  he  has  obeyed  the  order  of  the 
court  in  returning  it ;  otherwise  it  is  of  one  who  has  not  the  power 
to  procure  a  return  to  be  made."  4.  Where  it  is  necessary  to 
plead  the  judgment,  that  may  be  done  (if  it  was  a  judgment  of  a 
superior  court),  without  setting  forth  any  of  the  previous  pro- 
ceedings in  the  suit.  5.  Where  the  justification  is  founded 
on  process  issuing  out  of  an  inferior  English  court,  or,  as  it 
seems,  a  court  of  foreign  jurisdiction,  the  nature  and  extent  of 
the  jurisdiction  of  such  court  ought  to  be  set  forth;  and  it  ought 
to  be  shown  that  the  cause  of  action  arose  within  that  jurisdic- 
tion; though  a  justification  founded  on  process  of  any  of  the  su- 
perior courts  need  not  contain  such  allegations.  And  in  pleading 
a  judgment  of  inferior  courts,  the  previous  proceedings  are  in 
some  measure  stated.  But  it  is  allowable  to  set  them  forth  with 
a  taliter  protcessum  est,  thus,  that  A.  B.  at  a  certain  court,  etc., 
held  at,  etc.,  levied  his  plaint  against  C.  D.  in  a  certain  plea  of 
trespass  on  the  case  or  debt,  etc.  (as  the  case  may  be)  for  a  cause 
of  action  arising  within  the  jurisdiction,  and  thereupon  such  pro- 
ceedings were  had,  that  afterwards,  etc.,  it  was  considered  by  the 
said  court  that  the  said  A.  B.  should  recover  against  the  said  C. 
D.,  etc. 

Notwithstanding  the  general  rule  under  consideration,  it  is 
allowable,  where  an  authority  may  be  constituted  verbally  and 
generally,  to  plead  it  in  general  terms.  Thus,  in  replevin,  where 
the  defendant  makes  cognizance,  confessing  the  taking  of  the 
goods  or  cattle  as  bailiff  of  another  person  for  rent  in  arrear  or 


§  480         ALLEGATION  IN  PLEADING  MUST  BE  CERTAIN  943 

as  damage  feasant,  it  is  sufficient  to  say,  that  "as  bailiff  of  the 
said  E.  T.  he  well  acknowledges  the  taking,  etc.,  as  for  and  in 
the  name  of  a  distress,  etc.,"  without  showing  any  warrant  for 
that  purpose. 

The  allegation  of  authority,  like  that  of  title,  must  in  general 
be  strictly  proved  as  laid. 

The  above-mentioned  particulars  of  place,  time,  quality,  quan- 
tity, and  value,  names  of  persons,  title,  and  authority,  though  in 
this  work  made  the  subjects  of  distinct  rules,  in  a  view  to  con- 
venient classification  and  arrangement,  are  to  be  considered  but 
as  examples  of  that  infinite  variety  of  circumstances,  which  it 
may  become  necessary  in  different  cases  and  forms  of  action  to 
particularize  for  the  sake  of  producing  a  certain  issue;  for  it 
may  be  laid  down  as  a  comprehensive  rule,  that, 

RULE  VII. 

§  480.    In  general  whatever  is  alleged  in  pleading  must 
be  alleged  with  certainty,  (z) 

This  rule  being  very  wide  in  its  terms,  it  will  be  proper  to 
illustrate  it  by  a  variety  of  examples. 

In  pleading  the  performance  of  a  condition  or  covenant,  it  is  a 
rule,  though  open  to  exceptions  that  will  be  presently  noticed, 
that  the  party  must  not  plead  generally  that  he  performed  the 
covenant  or  condition,  but  must  show  specially  the  time,  place, 
and  manner  of  performance ;  and  even  though  the  subject  to  be 
performed  should  consist  of  several  different  acts,  yet  he  must 
show  in  this  special  way  the  performance  of  each.18 

***** 

Thus,  in  debt  on  a  bond  conditioned  for  the  performance  of 
several  specific  things,  "the  defendant  pleaded  performavit  omnia, 
etc."  Upon  demurrer  it  was  adjudged  an  ill  plea;  for  the  par- 
ticulars being  expressed  in  the  condition,  he  ought  to  plead  to 
each  particular  by  itself. 

(*)   Com.    Dig.,   Pleader    (C.   17),    (C.   22),    (E.   5),    (F.   17). 


18.  This  rule  is  cited  with  approval  in  Norfolk,  etc.,  R.  Co.  v.  Suf- 
folk R.  Co.,  92  Va.  413,  23  S.  E.  737,  and  the  facts  of  that  case  well 
illustrate  the  rule. 


944  CERTAINTY  OF  ISSUE  §   480 

Yet  this  rule  requiring  performance  to  be  specially  shown  ad- 
mits of  relaxation  where  the  subject  comprehends  such  mul- 
tiplicity of  matter  as  would  lead  to  great  prolixity;  and  a  more 
general  mode  of  allegation  is  in  such  cases  allowable.  It  is  open 
also  to  the  following  exceptions.  Where  the  condition  is  for  the 
performance  of  matters  set  forth  in  another  instrument,  and 
these  matters  are  in  an  affirmative  and  absolute  form,  and  neither 
in  the  negative  nor  the  disjunctive,  a  general  plea  of  perform- 
ance is  sufficient.  And  where  a  bond  is  conditioned  for  in- 
demnifying the  plaintiff  from  the  consequence  of  a  certain  act,  a 
general  plea  of  non  damnificatus,  viz,  that  he  has  not  been  dam- 
nified, is  proper,  without  showing  how  the  defendant  has  indem- 
nified him.  These  variations  from  the  ordinary  rule  and  the 
principles  on  which  they  are  founded  will  be  explained  hereafter. 

When  in  any  of  these  excepted  cases,  however,  a  general  plea 
of  performance  is  pleaded,  the  rule  under  discussion  still  requires 
the  plaintiff  to  show  particularly  in  his  replication  in  what  way 
the  covenant  or  condition  has  been  broken;  for  otherwise  no  suf- 
ficiently certain  issue  would  be  attained.  Thus,  in  an  action  of 
debt  on  a  bond  conditioned  for  performance  of  affirmative  and 
absolute  covenants  contained  in  a  certain  indenture,  if  the  defend- 
ant pleads  generally  (as  in  that  case  he  may)  that  he  per- 
formed the  covenants  according  to  the  condition,  the  plaintiff 
cannot  in  his  replication  tender  issue  with  a  mere  traverse  of  the 
words  of  the  plea,  viz,  that  the  defendant  did  not  perform  any 
of  the  covenants,  etc. ;  for  this  issue  would  be  too  wide  and  un- 
certain ;  but  he  must  assign  a  breach  showing  specifically  in  what 
particular,  and  in  what  manner  the  covenants  have  been 
broken,  (a) 

Not  only  on  the  subject  of  performance,  but  in  a  variety  of 
other  cases,  the  books  afford  illustrations  of  this  general  rule. 
***** 

Thus  where,  to  a  declaration  on  a  promise  to  pay  the  debt  of  a 
third  person,  the  defendant  pleads  that  there  was  no  agreement 
or  memorandum  or  note  thereof  in  writing  signed  by  the  de- 
fendant or  any  person  by  him  lawfully  authorized,  as  required 

(a)  Flower  v.  Ross,  5  Taunt.  386.  Per  Lord  Mansfield,  Sayre  v. 
Minnis,  Cowp.  578;  Com.  Dig.,  Pleader  (F.  14). 


§  480         ALLEGATION  IN  PLEADING  MUST  BE  CERTAIN  945 

by  the  statute  of  frauds,  and  the  plaintiff  replies  that  there  was 
such  an  agreement,  concluding  to  the  country,  it  seems  that  this 
replication  is  insufficient,  and  that  it  ought  to  set  the  agreement 
forth. 

So  in  debt  on  bond,  the  defendant  pleaded  that  the  instrument 
was  executed  in  pursuance  of  a  certain  corrupt  contract  made  at 
the  time  and  place  specified  between  the  plaintiff  and  defendant, 
whereupon  there  was  reserved  above  the  rate  of  5/.  for  the  for- 
bearing of  100/.  for  a  year,  contrary  to  the  statute  in  such  case 
made  and  provided.  To  this  plea  there  was  a  demurrer,  assign- 
ing for  cause  that  the  particulars  of  the  contract  were  not  speci- 
fied, nor  the  time  of  forbearance,  nor  the  sum  to  be  forborne, 
nor  the  sum  to  be  paid  for  such  forbearance.  And  the  court 
held  that  the  plea  was  bad  for  not  setting  forth  particularly  the 
corrupt  contract  and  the  usurious  interest;  and  Bayley,  J.,  ob- 
served, that  he  had  "always  understood  that  the  party  who 
pleads  a  contract  must  set  it  out,  if  he  be  a  party  to  the  con- 
tract." (&) 

***** 

In  an  action  of  trover  for  taking  a  ship,  the  defendant  pleaded 
that  he  was  captain  of  a  certain  man-of-war,  and  that  he  seized 
the  ship,  mentioned  in  the  declaration,  as  prize;  that  he  carried 
her  to  a  certain  port  in  the  East  Indies;  and  that  the  admiralty 
court  there  gave  sentence  against  the  said  ship  as  prize.  Upon 
demurrer  it  was  resolved  that  it  was  necessary  for  the  plea  to 
show  some  special  cause  for  which  the  ship  became  a  prize ;  and 
that  the  defendant  ought  to  show  who  was  the  judge  that  gave 
sentence,  and  to  whom  that  court  of  admiralty  did  belong.  -And 
for  the  omission  of  these  matters  the  plea  was  adjudged  in- 
sufficient, (c) 

In  an  action  of  debt  on  bond,  conditioned  to  pay  so  much 
money  yearly,  while  certain  letters-patent  were  in  force,  the  de- 
fendant pleaded  that  from  such  a  time  to  such  a  time  he  did 
pay ;  and  that  then  the  letters-patent  became  void  and  of  no  force. 
The  plaintiff  having  replied,  it  was  adjudged,  on  demurrer  to 

(&)  Hill  v.  Montagu,  2  M.  &  S.  377;  Hinton  v.  Roffey,  3  Mod.  35, 
S.  P. 

(c)   Beak  v.  Tyrell,  Garth.  31. 
—60 


946  CERTAINTY   OF   ISSUE  §    481 

the  replication,  that  the  plea  was  bad ;  because  it  did  not  show 
how  the  letters-patent  became  void.(cf) 

Where  the  defendant  justified  an  imprisonment  of  the  plaintiff, 
on  the  ground  of  a  contempt  committed  tarn  factis  quam  verbis, 
the  plea  was  held  bad  upon  demurrer  because  it  set  forth  the  con- 
tempt in  this  general  way  without  showing  its  nature  more  par- 
ticularly.^) 

With  respect  to  all  points  on  which  certainty  of  allegation  is 
required,  it  may  be  remarked,  in  general,  that  the  allegation,  when 
brought  into  issue,  requires  to  be  proved  in  substance  as  laid; 
and  that  the  relaxation  of  the  ordinary  rule  on  this  subject,  which 
is  allowed  with  respect  to  time,  quantity,  and  value  does  not, 
generally  speaking,  extend  to  other  particulars. 

Such  are  the  principal  rules  which  tend  to  certainty ;  but  it  is 
to  be  observed,  that  these  receive  considerable  limitation  and 
restriction  from  some  other  rules  of  a  subordinate  kind,  to  the 
examination  of  which  it  will  now  be  proper  to  proceed. 

SUBORDINATE  RULES. 

§  481.  1.  It  is  not   necessary   In   pleading   to  state  that 
which  is  merely  matter  of  evidence.  (/) 

In  other  words,  it  is  not  necessary  in  alleging  a  fact,-  to  state 
such  circumstances  as  merely  tend  to  prove  the  truth  of  the  fact. 
This  rule  may  be  illustrated  by  the  following  cases. 

*  *  *  *  *  . 

[Thus,  in  an  action  by  a  servant  against  the  master  to  recover 
damages  for  injuries  received  while  constructing  a  pier,  where 
the  declaration  set  forth  the  circumstances  under  which  the 
injury  was  received  with  sufficient  certainty  to  enable  the  de- 
fendant to  fairly  present  his  grounds  of  defence,  it  was  held 
that  it  was  unnecessary  to  give  in  detail  the  methods  employed 

(d)   Lewis  v.  Preston,  1  Show.  290;  Skin.  303,  S.  C. 

O)   Collett  v.  Baliffs  of  Shrewsbury,  2  Leo.  34. 

(/)  "Evidence  shall  never  be  pleaded  because  it  tends  to  prove 
matter  in  fact;  and  therefore  the  matter  in  fact  shall  be  pleaded." 
Bowman's  Case,  9  Rep.  9b;  and  see  9  Ed.  3,  5b,  6a,  there  cited; 
Eaton  -v.  Southby,  Willes,  131;  Jedmy  v.  Jenny,  Raym.  8;  Groenvelt 
v.  Burnell,  Carth.  491;  Digby  v.  Alexander,  8  Bing.  416;  Martin  v. 
Smith,  6  East.  563. 


§    481  PLEADING   MATTERS  OF  EVIDENCE  947 

by  the  defendant  in  the  construction  of  the  pier,  as  that  was  a 
mere  matter  of  evidence.19  So  where  a  telegraph  company  filed 
a  bill  to  restrain  the  operation  of  electric  light  wires  which  had 
been  placed  so  close  to  complainant's  wires  as  to  interfere  with 
and  injuriously  affect  the  working  of  the  latter,  but  did  not  state 
the  distance  at  which  an  electric  current  on  one  wire  will  affect 
another,  it  was  held  that  this  was  a  mere  matter  of  evidence,  and 
it  was  not  necessary  to  state  it  in  the  pleadings.20  Again,  where 
the  declaration  in  a  case  for  negligent  killing  alleged  that  the 
intestate  and  the  driver  of  the  team  were  in  the  exercise  of  due 
care  at  the  time  of  the  accident,  the  defendant,  by  two  special 
pleas,  set  out  the  various  facts  and  circumstances  tending  to  show 
that  they  were  not  in  the  exercise  of  due  care.  The  pleas  were 
held  bad  for  alleging  that  which  was  merely  a  matter  of  evi- 
dence.]21 

The  reason  of  this  rule  is  evident,  if  we  revert  to  the  general 
object  which  all  the  rules  tending  to  certainty  contemplate,  viz, 
the  attainment  of  a  certain  issue.  This  implies  (as  has  been 
shown),  a  development  of  the  question  in  controversy  in  a  spe- 
cific shape ;  and  the  degree  of  specification  with  which  this  should 
be  developed,  it  has  been  elsewhere  attempted,  in  a  general  way, 
to  define.  But,  so  that  that  object  be  attained,  there  is,  in 
general,  no  necessity  for  further  minuteness  in  the  pleading; 
and  therefore  those  subordinate  facts  which  go  to  make  up  the 
evidence  by  which  the  affirmative  or  negative  of  the  issue  is  to 
be  established,  do  not  require  to  be  alleged,  and  may  be  brought 
forward,  for  the  first  time,  at  the  trial,  when  the  issue  comes  to 
be  decided. 

***** 

This  is  a  rule,  so  elementary  in  its  kind  and  so  well  observed 
in  practice,  as  not  to  have  become  frequently  the  subject  of  il- 
lustration by  decided  cases;  and  (for  that  reason  probably)  is 
little  if  at  all  noticed  in  the  digests  and  treatises.  It  is,  however, 

19.  C.   &  O.   Ry.   Co.   v.   Hoffman,   109  Va.   44,   63   S.   E.   432. 

20.  Western   Union  Tel.   Co.  v.   Los  Angeles   Electric  Co.,  76  Fed. 
178. 

21.  Boyden  v.   Fitchburg  R.   Co.,   70  Vermont   125,   39  Atl.   77.     In 
this   connection,   compare  Ches.   &  O.    R.   Co.   v.   Mathews    (Va.),  76 
S.   E.  288. 


948  CERTAINTY  OF  ISSUE)  §   482 

a  rule  of  great  importance,  from  the  influence  which  it  has  on  the 
general  character  of  English  pleading;  and  it  is  this,  perhaps, 
more  than  any  other  principle  of  the  science,  which  tends  to 
prevent  that  minuteness  and  prolixity  of  detail,  in  which  the 
allegations,  under  other  systems  of  judicature,  are  involved. 
Another  rule,  that  much  conduces  to  the  same  effect  is,  that: 

§  482.  2.  It  is  not  necessary  to  state  matter  of  which 

the  court  takes  notice  ex  officio.(^r) 

Therefore  it  is  unnecessary  to  state  matter  of  law;(h}  for 
this  the  judges  are  bound  to  know,  and  can  apply  for  themselves 
to  the  facts  alleged.  Thus,  if  it  be  stated  in  pleading  that  an 
officer  of  a  corporate  body  was  removed  for  misconduct  by  the 
corporate  body  at  large,  it  is  unnecessary  to  aver  that  the  power 
of  removal  was  vested  in  such  corporate  body;  because  that  is  a 
power  by  law  incidental  to  them,  unless  given  by  some  charter, 
by-law,  or  other  authority,  to  a  select  part  only.(t)  Nor  is  it  the 
principles  of  the  common  law  alone  which  it  is  unnecessary  to 
state  in  pleading.  The  public  statute  law  falls  within  the  same 
reason  and  the  same  rule;  as  the  judges  are  bound,  officially,  to 
notice  the  tenor  of  every  public  act  of  parliament.  (/)  It  is, 
therefore,  never  necessary  to  set  forth  a  public  statute. (k)  The 
case,  however,  of  private  acts  of  parliament  is  different;  for 
these  the  court  does  not  officially  notice ;(/)  and,  therefore,  where 
a  party  has  occasion  to  rely  on  an  act  of  this  description,  he  must 
set  forth  such  parts  of  it  as  are  material. (w)22 

(g)  Co.  Litt.  303b;  Com.  Dig.,  Pleader  (C.  78);  Deybel's  Case,  4 
Barn.  &  Aid.  243. 

(h)  Doct.  PI.  102;  Per  Duller,  J.,  The  King  v.  Lyme  Regis,  Doug. 
159. 

(i)  The  King  v.  Lyme  Regis,  Doug.  148. 

(;')   1  Bl.  Com.  85. 

(k}   Boyce  v.  Whitaker,  Doug.  97;   Partridge  v.   Strange,  Plow.  84. 

(7)   1   Bl.   Com.,  Ibid.;   Platt  v.   Hill,  Ld.   Ray.  381. 

(w)   Boyce  v.  Whitaker,  Doug.  97. 


22.  It  is  provided  by  statute  in  Va.  and  W.  Va.  that  private  acts 
may  be  given  in  evidence  without  being  specially  pleaded,  and  an 
appellate  court  shall  take  judicial  notice  of  such  as  appear  to  have 
been  relied  on  in  the  court  below.  Va.  Code,  §  3328;  W.  Va.  Code, 
§  3922. 


§    482  PLEADING   JUDICIAL   NOTICE  949 

It  may  be  observed,  however,  that  though  it  is  in  general  un- 
necessary to  allege  matter  of  law,  yet  there  is  some  times  oc- 
casion to  make  mention  of  it,  for  the  convenience  or  intelligibility 
of  the  statement  of  fact.  Thus,  in  an  action  of  assumpsit  it  is 
very  common  to  state  that  the  defendant,  under  the  particular 
circumstances  set  forth  in  the  declaration,  became  liable  to  pay; 
and  being  so  liable,  in  consideration  thereof  promised  to  pay.  So- 
ft is  sometimes  necessary  to  refer  to  a  public  statute  in  general 
terms,  to  show  that  the  case  is  intended  to  be  brought  within  the 
statute ;  as  for  example,  to  allege  that  the  defendant  committed  a 
certain  act  against  the  form  of  the  statute  in  such  case  made  and 
provided;  but  the  reference  is  made  in  this  general  way  only,  and 
there  is  no  need  to  set  the  statute  forth.23 

This  rule,  by  which  matter  of  law  is  omitted  in  the  pleadings, 
by  no  means  prevents  (it  will  be  observed)  the  attainment  of  the 
requisite  certainty  of  issue.  For  even  though  the  dispute  between 
the  parties  should  turn  upon  matter  of  law,  yet  they  may  evi- 
dently obtain  a  sufficiently  specific  issue  of  that  description,  with- 
out any  allegation  of  law ;  for  ex  facto  jus  oritur,  that  is,  every 
question  of  law  necessarily  arises  out  of  some  given  state  of 
facts;  and  therefore  nothing  more  is  necessary  than  for  each 
party  to  state  alternately  his  case  in  point  of  fact;  and  upon  de- 
murrer to  the  sufficiency  of  some  one  of  these  pleadings,  the  issue 
in  law  must  at  length  (as  formerly  demonstrated)  arise. 

As  it  is  unnecessary,  to  allege  matter  of  law,  so  if  it  be  alleged, 
it  is  improper  (as  it  has  been  elsewhere  stated)  to  make  it  the 
subject  of  traverse. 

***** 

[Foreign  Law. — The  laws  of  other  states  and  countries  are 
regarded  as  facts  and  when  relied  on  as  a  ground  of  action  or 
defence  must  be  alleged  in  the  pleadings  and  proved  as  other  facts. 
The  constuction  and  application  of  such  laws,  however,  are  for 
the  court  and  not  for  the  jury,  though  upon  this  subject  there 
is  conflict  of  authority.  Courts  of  the  States  take  judicial  notice 

23.  In  an  action  for  insulting  words  under  Va.  Code,  §  2897,  it 
must  in  some  way  be  made  to  appear  that  the  plaintiff  is  suing  un- 
der the  statute  and  not  for  common  law  slander.  Hogan  v.  Wil- 
mouth,  16  Gratt.  80. 


950  CERTAINTY   OF   ISSUE  §    483 

of  what  States  have  the  common  law  as  the  basis  of  their  juris- 
prudence, but  in  the  absence  of  any  proof  of  what  the  common 
law  of  another  State  is  the  trial  court  refuses  to  recognize  that 
it  is  different  from  the  law  of  the  forum  unaffected  by  statute.24 
Matters  of  fact  of  which  the  court  takes  judicial  notice  stand 
in  the  place  of  evidence  and  generally  need  not  be  averred  in  the 
pleading  unless  necessary  for  a  right  understanding  of  the  case.] 

§  483.    3.  It  is  not  necessary  to  state  matter  which  would 
come  more  properly  from  the  other  side.fw) 

This,  which  is  the  ordinary  form  of  the  rule,  does  not  fully  ex- 
press its  meaning.  The  meaning  is,  that  it  is  not  necessary  to 
anticipate  the  answer  of  the  adversary;  which,  according  to 
Hale,  C.  J.,  is  "like  leaping  before  one  comes  to  the  stile." (o)  It 
is  sufficient  that  each  pleading  should  in  itself  contain  a  good 
prima  facie  case,  without  reference  to  possible  objection  not  yet 
urged.  Thus,  in  pleading  a  devise  of  land  by  force  of  the  statute 
of  wills,  32  Hen.  8,  c.  1,  it  is  sufficient  to  allege  that  such  an  one 
was  seized  of  the  land  in  fee,  and  devised  it  by  his  last  will,  in 
writing,  without  alleging  that  such  devisor  was  of  full  age.  For 
though  the  statute  provides  that  wills  made  by  femmes  covert,  or 
persons  within  age,  etc.,  shall  not  be  taken  to  be  effectual,  yet  if 
the  devisor  were  within  age,  it  is  for  the  other  party  to  show  this 
in  his  answer (/>)  and  it  need  not  be  denied  by  anticipation. 

So  in  a  declaration  of  debt  upon  a  bond  it  is  unnecessary  to 
allege  that  the  defendant  was  of  full  age  when  he  executed  it.(^) 

(M)  Com.  Dig.,  Pleader  (C.  81);  Stowell  v.  Lord  Zouch,  Plow.  376; 
Walsingham's  Case,  id.,  564;  St.  John  v.  St.  John,  Hab.  78;  Hotham 
v.  East  India  Co.,  1  T.  R.  638;  Palmer  v.  Lawson,  1  Sid.  333;  Lake  v. 
Raw,  Carth.  8;  Williams  v.  Fowler,  Str.  410. 

(o)   Sir  Ralph   Bovy's  Case,  Vent.  217. 

(/>)   Stowell  v.  Lord  Zouch,  Plow.  376. 

(q)  Walsingham's  Case,  Plow.  564;  Sir  Ralph  Bovy's  Case,  1  Vent. 
217. 


24.  Gr.  Ev.  (16th  Ed.),  §§  6b,  486,  487;  Minor  Conflict  of  Laws, 
§  214;  Frank  v.  Gump,  104  Va.  306,  51  S.  E.  358;  App  v.  App,  106 
Va.  253,  55  S.  E.  672;  N.  &  W.  Ry.  Co.  v.  Denny,  106  Va.  383,  56 
S.  E.  321;  Union  Cent.  L.  Ins.  Co.  v.  Pollard,  94  Va.  146,  26  S.  E. 
421. 


§    483  PLEADING    UNNECESSARY    MATTER  951 

But  where  the  matter  is  such  that  its  affirmation  or  denial  is 
essential  to  the  apparent  or  prima  facie  right  of  the  party  plead- 
ing, there  it  ought  to  be  affirmed  or  denied  by  him  in  the  first 
instance,  though  it  may  be  such  as  would  otherwise  properly 
form  the  subject  of  objection  on  the  other  side.  Thus,  in  an 
action  of  trespass  on  the  case  brought  by  a  commoner  against  a 
stranger  for  putting  his  cattle  on  the  common,  per  quod  com- 
muniam  in  tarn  amplo  inodo  habere  non  potuit,  the  defendant 
pleaded  a  license  from  the  lord  to  put  his  cattle  there,  but  did 
not  aver  that  there  was  sufficient  common  left  for  the  commoners. 
This  was  held,  on  demurrer,  to  be  no  good  plea;  for  though  it 
may  be  objected  that  the  plaintiff  may  reply  that  there  was  not 
enotigh  common  left,  yet  as  he  had  already  alleged  in  his  decla- 
ration that  his  enjoyment  of  the  common  was  obstructed,  the 
contrary  of  this  ought  to  have  been  shown  by  the  plea.(r) 

[It  is  held  in  Virginia,  and  by  the  weight  of  authority  generally, 
that  in  an  action  for  an  injury  negligently  inflicted  on  the  plain- 
tiff by  the  defendant  it  is  not  necessary  for  the  plaintiff  to  nega- 
tive his  contributory  negligence.25  So,  where  plaintiff  sued  the 
defendant  for  negligently  keeping  a  horse  as  inn  keeper  and  per- 
mitting him  to  escape,  so  that  he  was  lost,  the  declaration  failed 
to  show  the  manner  of  keeping  the  horse  and  how  he  escaped. 
On  exception,  the  declaration  was  held  good,  as  this  was  matter 
lying  more  particularly  in  the  defendant's  knowledge,  and  would 
come  more  properly  from  him.]26 

There  is  an  exception  to  the  rule  in  question,  in  the  case  of 
certain  pleas  which  are  regarded  unfavorably  by  the  courts,  as 
having  the  effect  of  excluding  the  truth.  Such  are  all  pleadings 
in  estoppel(s)  and  the  plea  of  alien  enemy.  It  is  said  that  these 
must  be  certain  in  every  particular;  which  seems  to  amount  to 
this,  that  they  must  meet  and  remove  by  anticipation  every  pos- 
sible answer  of  the  adversary.  Thus,  in  a  plea  of  alien  enemy, 
the  defendant  must  state  not  only  that  the  plaintiff  was  born  in  a 

(r)  Smith  v.  Feverell.  2  Mod.  6;  1  Freeman,  190,  S.  C.;  Greenhow 
r.  Ilsley.  Willes,  619. 

(s)   Co.   Litt.   352b,  303a;    Dovaston   r.   Payne,   2   H.    Bl.   530. 


25.  Winchester  r.  Carroll,  99  Va.  727,  40  S.  E.  37;  Newport  News 
Co.  r.  Beaumester,  104  Va.  744,  52  S.  E.  627,  29  Cyc.  575-6. 

26.  Owens  r.   Geiger,  2   Mo.   39. 


952  CERTAINTY   OF   ISSUE  §    484 

foreign  country,  now  at  enmity  with  the  king,  but  that  he  came 
here  without  letters  of  safe  conduct  from  the  king;(/)  whereas, 
according  to  the  general  rule  in  question,  such  safe  conduct,  if 
granted,  should  be  averred  by  the  plaintiff  in  reply,  and  would 
not  need  in  the  first  instance  to  be  denied  by  the  defendant. 

§  484.  4.  It   is    not   necessary   to    allege    circumstances 
necessarily  implied,  (u) 

Thus,  in  an  action  of  debt  on  a  bond  conditioned  to  stand  to 
and  perform  the  award  of  W.  R.,  the  defendant  pleaded  that 
W.  R.  made  no  award.  The  plaintiff  replied,  that  after  the  mak- 
ing of  the  bond,  and  before  the  time  for  making  the  award,  the 
defendant,  by  his  certain  writing,  revoked  the  authority  of  the 
said  W.  ^R.,  contrary  to  the  form  and  effect  of  the  said  condition. 
Upon  demurrer,  it  was  held  that  this  replication  was  good,  with- 
out averring  that  W.  R.  had  notice  of  the  revocation;  because, 
that  was  implied  in  the  words  "revoked  the  authority ;"  for  there 
could  be  no  revocation  without  notice  to  the  arbitrator;  so  that 
if  W.  R.  had  no  notice,  it  would  have  been  competent  to  the  de- 
fendant to  tender  issue,  "that  he  did  not  revoke  in  manner  and 
form  as  alleged. "(v)  So  if  a  feoffment  be  pleaded,  it  is  not 
necessary  to  allege  livery  of  seizin,  for  it  is  implied  in  the  word 
"enfeoffed."(w)  So  if  a  man  plead  that  he  is  heir  to  A.,  he 
need  not  allege  that  A.  is  dead,  for  it  is  implied.  (A") 

[So  where  the  plaintiff  declared  that  the  defendant  negligently 
caused  a  bomb,  or  explosive,  to  be,  or  remain,  in  a  public  alley,  so 
that  as  the  proximate  consequence  of  such  negligence,  the  plain- 
tiff was  injured,  it  was  objected  that  the  declaration  did  not  aver 
any  duty  owing  by  the  defendant  to  the  plaintiff,  but  the  courr 

(0   Casseres  v.   Bell,   8  T.   R.   166. 

(M)  Vynior's  Case,  8  Rep.  81b;  Bac.  Ab.,  Pleas,  etc.  (1),  7;  Com. 
Dig.,  Pleader  (E.  9);  Co.  Litt.  303b;  2  Saund.  305a,  n.  13;  Reg.  Plac. 
101;  Sheers  v.  Brooks,  2  H.  Bl.  120;  Handford  v.  Palmer,  2  Brod. 
&  Bing.  361;  Marsh  v.  Bulteel,  5  Barn.  &  Aid.  507. 

(v)  Vynior's  Case,  8  Rep.  81b;  Marsh  v.  Bulteel,  5  Barn.  &  Aid. 
507,  S.  P. 

(w)   Co.  Litt.   303b;   Doct.   PI.   48,  49;   2   Saund.   305a,   n.   13. 

(*)  2  Saund.  305a,  n.  13;  Com.  Dig.,  Pleader  (E.  9);  Dal.  67. 


§§   485-486      GENERAL   MODE  OF  PLEADING  ALLOWED  953 

held  that  the  law  implied  a  duty  and  that  it  was  not  therefore 
necessary  to  aver  it  in  terms  in  the  complaint.27 

Thus,  in  an  action  of  slander  for  defamation  of  character,  it 
is  not  necessary  for  the  plaintiff  to  allege  or  prove  that  he  is  a 
man  of  good  character,  as  the  law  will  presume  it.  So,  also, 
where  a  railway  company  demurred  to  the  plaintiff's  declaration 
because  it  failed  to  allege  that  the  hotel  business  and  saloon  busi- 
ness, which  the  railway  company  was  charged  with  injuring, 
was  lawful,  it  was  held  that  the  allegation  was  unnecessary,  as 
the  law  would  presume  that  the  plaintiff  was  conducting  his  busi- 
ness in  a  lawful  manner.28  And  where  a  petition  alleged  a  judg- 
ment of  a  court  of  general  jurisdiction,  and  objection  was  made 
on  the  ground  that  the  declaration  did  not  allege  that  said  judg- 
ment was  "duly  rendered,"  it  was  held  that  judgments  of  superior 
courts  are  presumed  to  be  duly  rendered,  and  the  fact  need  not  be 
alleged  in  the  pleadings.]29 

§  485.  5.  It  is  not  necessary  to  allege  what  the  law  will 
presume,  (y) 


§486.    6.    A  general  mode  of  pleading  is  allowed  where 
great  prolixity  is  thereby  avoided,  (s) 

It  has  been  objected  with  truth  that  this  rule  is  indefinite  in 
its  form,  (a)  Its  extent  and  application  however,  may  be  col- 

(y)  Wilson  v.  Hobday,  4  M.  &  S.  125;  Chapman  v.  Pickersgill,  2 
Wils.  147;  1  Chitty.  226. 

(z)  Co.  Litt.  303b;  2  Saund.  116b,  411,  n.  4;  Bac.  Ab.,  Pleas,  etc. 
(I)  3;  Jermy  v.  Jenny,  Raym.  8;  Aglionby  v.  Towerson,  id.  400; 
Parks  v.  Middleton,  Lutw.  421;  Cornwallis  v.  Savery,  2  Burr.  772; 
Mints  v.  Bethil,  Cro.  Eliz.  749;  Braban  v.  Bacon,  id.  916;  Church  v. 
Brownwick,  1  Sid.  334;  Cryps  v.  Baynton,  3  Bulst.  31;  Banks  v.  Pratt, 
Sty.  428;  Carth.  110;  I'Anson  v.  Stuart,  1  T.  R.  753;  Hill  v.  Montagu, 
2  M.  &  S.  378.  , 

(a)  1  Arch.  211. 


27.  Wells  v.   Gallagher,  144  Ala.  363,  39   South.   519. 

28.  Inter.   &  G.   N.  Ry.  Co.  v.  Greenwood,  2  Tex.  Civ.  App.  76,  21 
S.   W.   559. 

29.  Terry  v.   Johnson,  109   Ky.   589,  60   S.   W.   300. 


954  CERTAINTY    OF    ISSUE  §    486 

lected  with  some  degree  of  precision  from  the  examples  by  which 
it  is  illustrated  in  the  books,  and  by  considering  the  limitations 
which  it  necessarily  receives  from  the  rules  tending  to  certainty, 
as  enumerated  in  a  former  part  of  this  section. 

In  assumpsit,  on  a  promise  by  the  defendant  to  pay  for  all 
such  necessaries  as  his  friend  should  be  provided  with  by  the 
plaintiff,  the  plaintiff  alleged  that  he  provided  necessaries  amount- 
ing to  such  a  sum.  It  was  moved  in  arrest  of  judgment  that  the 
declaration  was  not  good,  because  he  had  not  shown  what  neces- 
saries in  particular  he  had  provided.  But  Coke,  C.  J.,  said, 
"this  is  good  as  is  here  pleaded,  for  avoiding  such  multiplicities 
of  reckonings ;"  and  Doddridge,  J.,  "this  general  allegation  that 
he  had  provided  him  with  all  necessaries  is  good,  without  show- 
ing in  particular  what  they  were."  And  the  court  gave  judgment 
unanimously  for  the  plaintiff.  (&)  So  in  assumpsit  for  labor,  and 
medicines  for  curing  the  defendant  of  a  distemper,  the  defendant 
pleaded  infancy.  The  plaintiff  replied  that  the  action  was  brought 
for  necessaries  generally.  On  demurrer  to  the  replication,  it  was 
objected  that  the  plaintiff  had  not  assigned  in  certain  how  or  in 
what  manner  the  medicines  were  necessary ;  but  it  was  adjudged 
that  the  replication  in  this  general  form  was  good ;  and  the  plain- 
tiff had  judgment,  (c)  So  in  debt  on  a  bond  conditioned  that  the 
defendant  shall  pay  from  time  to  time  the  moiety  of  all  such 
money  as  he  shall  receive  and  give  account  of  it,  he  pleaded 
generally  that  he  had  paid  the  moiety  of  all  such  money,  etc.  Bt 
per  curiam,  "This  plea  of  payment  is  good  without  showing  the 
particular  sums ;  and  that,  in  order  to  avoid  stuffing  the  rolls  with 
multiplicity  of  matter."  Also,  they  agreed  that,  if  the  condition 
had  been  to  pay  the  moiety  of  such  money,  as  he  should  receive, 
without  saying  from  time  to  time,  the  payment  should  have  been 
pleaded  specially. (d} 

[The  plaintiff  sued  a  railroad  company  for  its  negligent  failure 
to  furnish  them  cars  on  demand,  and  set  out  in  his  declaration 
the  general  facts  which  constituted  his  cause  of  action.  The  de- 

(b)  Cryps  v.   Baynton,   3   Bulst.   31.  , 

(c)  Huggins   "V.    Wiseman,    Carth.    110. 

(d)  Church    v.    Brownwick,    1    Sid.    334;    and    see    Mints   v.    Bethil, 
Cro.    Eliz.    749. 


§  486        QENERAL  MODE  OF  PLEADING  ALLOWED          955 

fendant  objected  to  the  declaration,  and  insisted  that  each  de- 
mand and  refusal  should  be  set  out  in  a  separate  paragraph  of 
the  complaint,  as  it  constituted  -a  separate  cause  of  action.  These 
causes  of  actions,  amounting  to  several  hundred  in  number, 
covered  a  period  of  six  years,  and  the  plaintiff  had  inserted  them 
in  one  paragraph.  Held,  that  the  declaration  was  good,  and  that 
to  avoid  prolixity  the  law  allows  general  pleading  where  the  sub- 
ject comprehends  a  multiplicity  of  matters,  and  a  great  variety 
of  facts.]30 

***** 

So  in  debt  on  bond  conditioned  that  R.  S.  should  render  to  the 
plaintiff  a  just  account  and  make  payment  and  delivery  of  all 
moneys,  bills,  etc.,  which  he  should  receive  as  his  agent,  the  de- 
fendant pleaded  performance.  The  plaintiff  replied  that  R.  S. 
received  as  such  agent  divers  sums  of  money  amounting  to  £2.000, 
belonging  to  the  plaintiff's  business,  and  had  not  rendered  a  just 
account  nor  ma'de  payment  and  delivery  of  the  said  sum  or  any 
part  thereof.  The  defendant  demurred  specially,  assigning  for 
cause,  that  it  did  not  appear  by  the  replication,  from  whom  or  in 
what  manner,  or  in  what  proportions,  the  said  sums  of  money 
amounting  to  £2,000  had  been  received.  But  the  court  held  the 
replication  "agreeable  to  the  rules  of  law,  and  precedents." (?) 

[If,  however,  a  party  be  charged  with  fraud,  he  is  entitled  to 
know  the  particular  instances  on  which  fraud  is  founded,  and  to 
have  them  disclosed  to  him.31 

In  Virginia  the  pleading  on  an  insurance  policy  is  greatly 
shortened  by  virtue  of  the  statutory  provision  allowing  the  party 
to  file  a  complaint,  together  with  the  original  policy,  or  a  sworn 
copy  thereof,  and  aver  generally  that  he  has  performed  all  of  the 
conditions  of  said  policy  and  violated  none  of  its  prohibitions, 
and  that  it  shall  not  be  necessary  to  set  forth  every  condition  or 
proviso  of  said  policy,  nor  to  aver  observance  of,  or  compliance 

(e)  Shum  v.  Farrington.  1  Bos.  &  Pul.  640;  and  see  a  similar  deci- 
sion, Burton  v.  Webb,  8  T.  R.  459. 


30.  Chicago,  etc.,  R.  Co.  v.  Walcott,  141  Ind.  267,  50  Am.  St.  Rep. 
320.     Compare   Moore  v.   Mauro,  4   Rand.   488. 

31.  J'Anson  v.   Stuart,  2  Smith's  Leading  Cases  986. 


956  CERTAINTY   Of   ISSUE)  §    487 

therewith  seriatim,  but  that  a  general  averment  to  that  effect  shall 
suffice.]32 

§  487.  7.  A  general  mode  of  pleading  is  often  sufficient, 
where  the  allegation  on  the  other  side  must  reduce 
the  matter  to  certainty.  (/) 

This  rule  comes  into  most  frequent  illustration  in  pleading  per- 
formance in  actions  of  debt  on  bond.  It  has  been  seen  that  the 
general  rule  as  to  certainty,  requires  that  the  time  and  manner 
of  such  performance  should  be  specially  shown.  Nevertheless 
by  virtue  of  the  rule  now  under  consideration,  it  may  be  some- 
times alleged  in  general  terms  only;  and  the  requisite  certainty 
of  issue  is  in  such  cases  secured,  by  throwing  on  the  plaintiff 
the  necessity  of  showing  a  special  breach  in  his  replication.  This 
course,  for  example,  is  allowed  in  cases  where  a  more  special 
form  of  pleading  would  lead  to  inconvenient  prolixity. 
*  *  *  *  * 

[At  common  law  a  penal  bond  with  condition  might  be  de- 
clared on  in  either  of  two  ways:  (1)  the  whole  bond,  including 
the  condition,  might  be  set  out  in  the  declaration  and  the  breaches 
of  the  condition  assigned,  or,  (2),  the  plaintiff  might  sue  simply 
on  the  penal  part  of  the  bond,  taking  no  notice  of  the  condition 
whatever.  In  the  latter  case,  the  plaintiff  could  then  crave  oyer 
of  the  bond  and  of  the  condition  thereunder  written,  and  plead 
generally  that  he  had  well  and  truly  kept  and  performed  the 
conditions  of  the  bond.  The  issue  would  then  be  made  more 
specific  by  the  replication  of  the  plaintiff,  setting  out  in  what 
manner  the  defendant  had  violated  the  conditions  of  the  bond. 
This  latter  course,  while  formerly  allowed  in  Virginia,  cannot 
now  be  adopted,  as  the  statute  requires  that  the  declaration  shall 
assign  the  specific  breaches  for  which  action  shall  be  brought.]33 

Another  illustration  is  afforded  by  the  plea  of  non  damnificatus, 
in  an  action  of  debt  on  an  indemnity  bond,  or  bond  conditioned 

(/)  Co.  Litt.  303b;  Mints  v.  Bethil,  Cro.  Eliz.  749;  1  Saund.  117, 
n.  1;  2  Saund.  41C,  n.  3;  Church  v.  Brownwick,  1  Sid.  334. 


32.  Code,    §    3251. 

33.  Code,   §  3394. 


§   487  GENERAL   MODE  OF  PLEADING  SUFFICIENT  957 

"to  keep  the  plaintiff  harmless  and  indemnified,"  etc.  This  is 
in  the  nature  of  a  plea  of  performance ;  being  used  where  the  de- 
fendant means  to  allege  that  the  plaintiff  has  been  kept  harm- 
less and  indemnified,  according  to  the  tenor  of  the  condition ;  and 
it  is  pleaded  in  general  terms  without  showing  the  particular  man- 
ner of  the  indemnification.  Thus,  if  an  action  of  debt  be  brought 
on  a  bond,  conditioned  that  the  defendant  "do  from  time  to  time 
acquit,  discharge,  and  save  harmless,  the  churchwardens  of  the 
parish  of  P.,  and  their  successors,  etc.,  from  all  manner  of  costs 
and  charges,  by  reason  of  the  birth  and  maintenance  of  a  certain 
child" — if  the  defendant  means  to  rely  on  the  performance  of  the 
condition,  he  may  plead  in  this  general  form — "that  the  church- 
wardens of  the  said  parish,  or  their  successors,  etc.,  from  the 
time  of  making  the  said  writing  obligatory,  were  not  in  any  man- 
ner damnified  by  reason  of  the  birth  or  maintenance  of  the  said 
child ;(g}  and  it  will  then  be  for  the  plaintiff  to  show  in  the  rep- 
lication, how  the  churchwardens  were  damnified.  But  with 
respect'  to  the  plea  of  non  damnificatus,  the  following  distinctions 
have  been  taken :  First,  if,  instead  of  pleading  in  that  form,  the 
defendant  alleges  affirmatively,  that  he  has  "saved  harmless," 
etc.,  the  plea  will  in  this  case  be  bad,  unless  he  proceeds  to  show 
specifically  how  he  saved  harmless,  (h)  Again,  it  fs  held  that  if 
the  condition  does  not  use  the  words  "indemnify,"  or  "save  harm- 
less," or  some  equivalent  term,  but  stipulates  for  the  performance 
of  some  specific  act,  intended  to  be  by  way  of  indemnity,  such 
as  the  payment  of  a  sum  of  money  by  the  defendant  to  a  third 
person,  in  exoneration  of  the  plaintiff's  liability  to  pay  the  same 
sum, — the  plea  of  non  damnificatus  will  be  improper;34  and  the 
defendant  should  plead  performance  specifically,  as  "that  he 
paid  the  said  sum,"  etc.(i)  It  is  also  laid  down  that  if  the  con- 
dition of  the  bond  be  to  "discharge"  or  "acquit"  the  plaintiff 
from  a  particular  thing,  the  plea  of  non  damnificatus  will  not 

(g)  Richard  v.  Hodges,  2  Saund.  84;  Hays  v.  Bryant,  1  H.  Bl. 
253;  Com.  Dig.,  Pleader  (E.  25),  2  W.  33;  Manser's  Case,  2  Rep. 
4a;  7  Went.  Index,  615;  5  Went.  531. 

(h)  1  Saund.  117,  n.  1;  White  v.  Cleaver,  Str.  681. 

(»')    Holmes  v.  Rhodes,  1   Bos.   &  Pul.  638.- 


34.  Archer  v.   Archer,  8   Gratt.   539. 


958  CERTAINTY  OF  ISSUE  §   487 

apply;  but  the  defendant  must  plead  performance  specially,  "that 
he  discharged  and  acquitted,"  etc.,  and  must  also  show  the  man- 
ner of  such  acquittal  and  discharge.  (/)  But,  on  the  other  hand, 
if  a  bond  be  conditioned  to  ''discharge  and  acquit  the  plaintiff 
from  any  damage"  by  reason  of  a  certain  thing,  non  damnificatus 
may  then  be  pleaded,  because  that  is  in  truth  the  same  thing  with 
a  condition  to  "indemnify  and  save  harmless,"  etc.(fe) 

The  rule  under  consideration  is  also  exemplified  in  the  case 
where  the  condition  of  a  bond  is  for  the  performance  of  cove- 
nants, or  other  matters  contained  in  an  indenture  or  other  instru- 
ment collateral  to  the  bond,  and  not  set  forth  in  the  condition^ 
In  this  case  also  th£  law  often  allows  (upon  the  same  principle 
as  in  the  last)  a  general  plea  of  performance,  without  setting 
forth  the  manner.  (7)  Thus,  in  an  action  of  debt  on  bond,  where 
the  condition  is  that  T.  J.,  deputy  postmaster  of  a  certain  stage, 
"shall  and  will  truly,  faithfully,  and  diligently,  do,  execute,  and 
perform  all  and  every  the  duties  belonging  to  the  said  office  of 
deputy  postmaster  of  the  said  stage,  and  shall  faithfully,  justly, 
and  exactly  observe,  perform,  fulfill,  and  keep  all  and  every  the 
instructions,  etc.,  from  his  Majesty's  postmaster-general,"  and 
such  instructions  are  in  an  affirmative  and  absolute  form,  as  fol- 
lows :  "you  shall  cause  all  letters  and  packets  to  be  speedily  and 
without  delay  carefully  and  faithfully  delivered,  that  shall  from 
time  to  time  be  sent  unto  your  said  stage,  to  be  dispersed  there, 
or  in  the  towns  and  parts  adjacent,  that  all  persons  receiving 
such  letters  may  have  time  to  send  their  respective  answers,"  etc., 
it  is  sufficient  for  the  defendant  to  plead  (after  setting  forth  the 
instructions)  "that  the  said  T.  J.,  from  the  time  of  the  making 
the  said  writing  obligatory,  hitherto  hath  well,  truly,  faithfully, 
and  diligently  done,  executed,  and  performed,  all  and  every  the 
duties  belonging  to  the  said  office  of  deputy  postmaster  of  the 
said  stage,"  and  faithfully,  justly,  and  exactly  observed,  per- 
formed, fulfilled,  and  kept  all  and  every  the  instructions,  etc.,  ac- 

(;')  1  Saund.  117,  n.  1;  Bret  v.  Audar,  1  Leon,  71;  White  v.  Cleaver, 
Str.  681;  Leneret  v.  Rivet,  Cro.  Jac.  503;  Harris  v.  Prett,  5  Mod.  243. 

(k)   1   Saund.  117,  n.  1;   Garth.  375. 

(/)  Mints  v.  Bethil,  Cro.  Eliz.  749;  Bac.  Ab.,  Pleas,  etc.  (I.)  3;  2 
Saund.  410,  n.  3;  1  Saund.  117,  n.  1;  Com.  Dig.,  Pleader  (2  V.  13); 
Earl  of  Kerry  v.  Baxter,  4  East,  340. 


§   487  GENERAL   MODE  OF  PLEADING  SUFFICIENT  959 

cording  to  the  true  intent  and  meaning  of  the  said  instructions," 
without  showing  the  manner  of  performance,  as  that  he  did  cause 
certain  letters  or  packets  to  be  delivered,  etc.,  being  all  that  were 
sent.(w)  So,  if  a  bond  be  conditioned  for  fulfilling  all  and 
singular  the  covenants,  articles,  clauses,  provisos,  conditions, 
and  agreements,  comprised  in  a  certain  indenture,  on  the  part 
and  behalf  of  the  defendant,  which  indenture  contains  covenants 
of  an  affirmative  and  absolute  kind  only,  it  is  sufficient  to  plead 
(after  setting  forth  the  indenture)  that  the  defendant  always 
hitherto  hath  well  and  truly  fulfilled  all  and  singular  the  cove- 
nants, articles,  clauses,  provisos,  conditions,  and  agreements,  com- 
prised in  the  said  indenture,  on  the  part  and  behalf  of  the  said 
defendant,  (w) 

But  the  adoption  of  a  mode  of  pleading  so  general  as  in  these 
examples  will  be  improper  where  the  covenants  or  other  matters 
mentioned  in  the  collateral  instrument  are  either  in  the  negative 
or  the  disjunctive  form  ;(o)  and  with  respect  to  such  matters,  the 
allegation  of  performance^should  be  more  specially  made,  so  as 
to  apply  exactly  to  the  tenor  of  the  collateral  instrument.  Thus, 
in  the  example  above  given,  of  a  bond  conditioned  for  the  per- 
formance of  the  duties  of  a  deputy-postmaster,  and  for  observing 
the  instructions  of  the  postmaster-general,  if,  besides  those  in 
the  positive  form,  some  of  these  instructions  were  in  the  negative, 
as  for  example,  "you  shall  not  receive  any  letters  or  packets  di- 
rected to  any  seaman,  or  unto  any  private  soldier,  etc.,  unless  you 
be  first  paid  for  the  same,  and  do  charge  the  same  to  your  account 
as  paid,"  it  would  be  improper  to  plead  merely  that  T.  J.  faith- 
fully performed  the  duties  belonging  to  the  office,  etc.,  and  all 
and  every  the  instructions,  etc.  Such  plea  will  apply  sufficiently 
to  the  positive,  but  not  to  the  negative  part  of  the  instructions. 
The  form  therefore  should  be  as  follows :  "That  the  said  T.  J. 
from  the  time  of  making  the  said  writing  obligatory  hitherto, 
hath  well,  truly,  faithfully,  and  diligently  executed  and  per- 

(m)  2    Saund.   403b,   410,   n.    3. 

(n)  Gainsford  v.  Griffith,  1  Saund.  117,  n.  1;  Earl  of  Kerry  v.  Bax- 
ter, 4  East,  340.  See  the  form,  2  Chitty,  483. 

(o)  Earl  of  Kerry  v.  Baxter,  4  East,  340;  Oglethrope  v.  Hyde,  Cro. 
Eliz.  233;  Lord  Arlington  v.  Merricke,  2  Saund.  410,  and  note  3,  Ibid. 


960  CERTAINTY   OF    ISSUE  §    487 

formed  all  and  every  the  duties  belonging  to  the  said  office  of 
deputy-postmaster  of  the  said  stage,  and  faithfully,  justly,  and 
exactly  observed,  performed,  fulfilled,  and  kept  all  and  every  the 
instructions,  etc.,  according  to  the  true  intent  and  meaning  of  the 
said  instructions.  And  the  said  defendant  further  says,  that 
the  said  T.  J.  from  the  time  aforesaid  did  not  receive  any  letters 
or  packets  directed  to  any  seaman  or  private  soldier,  etc.,  unless 
he,  the  said  T.  J.  was  first  paid  for  the  same,  and  did  so  charge 
himself  in  his  account  with  the  same  as  paid,"  etc.  And  the  case 
is  the  same  where  the  matters  mentioned  in  the  collateral  instru- 
ment are  in  the  disjunctive  or  alternative  form ;  as  where  the  de- 
fendant engages  to  do  either  one  thing  or  another.  Here  also  a 
general  allegation  of  performance  is  insufficient,  and  he  should 
show  which  of  the  alternative  acts  was  performed.  (/>) 

The  reasons  why  the  general  allegation  of  performance  does 
not  properly  apply  to  negative  or  disjunctive  matters,  are,  that  in 
the  first  case  the  plea  would  be  indirect  or  argumentative  in  its 
form — in  the  second,  equivocal ;  and  would  in  either  case,  there- 
fore, be  objectionable  in  reference  to  certain  rules  of  pleading, 
which  we  shall  have  occasion  to  consider  in  the  next  section. 

It  has  been  stated  in  a  former  part  of  this  work  that  where  a 
party  founds  his  answer  upon  any  matter  not  set  forth  by  his 
adversary,  but  contained  in  a  deed,,  of  which  the  latter  makes 
profert,  he  must  demand  oyer  of  such  deed,  and  set  it  forth.  In 
pleading  performance,  therefore,  of  the  condition  of  a  bond, 
where  (as  is  generally  the  case)  the  plaintiff  has  stated  in  his 
declaration,  nothing  but  the  bond  itself,  without  the  condition, 
it  is  necessary  for  the  defendant  to  demand  oyer  of  the  condi- 
tion, and  set  it  forth,  (g)  And  where  the  condition  is  for  per- 
formance of  matters  contained  in  a  collateral  instrument,  it  is 
necessary  not  only  to  do  this,  but  also  to  make  profert,  and  set 
forth  the  whole  substance  of  the  collateral  instrument ;  for  other- 
wise, it  will  not  appear  that  the  instrument  did  not  stipulate  for 
the  performance  of  negative  or  disjunctive  matters  ;(r)  and  in 
that  case  the  general  plea  of  performance  of  the  matters  therein 
contained  would  (as  above  shown)  be  improper. 

(/>)   Oglethropc  v.   Hyde,   Cro.   Eliz.   233. 

(<?)  2   Saund.   410,   n.   2. 

(r)   See  Earl  of  Kerry  v.  Baxter,  4  East.  340. 


§  488  DEFINITSNESS  IN  PLEADING  961 

§  488.  8.  No  greater  particularity  is  required  than  the 
nature  of  the  thing  pleaded  will  conveniently  admit,  (s) 

Thus,  though  generally  in  an  action  for  injury  to  goods,  the 
quantity  of  the  goods  must  be  stated,  yet  if  they  cannot  under 
the  circumstances  of  the  case  be  conveniently  ascertained  by 
number,  weight,  or  measure,  such  certainty  will  not  be  required. 
Accordingly  in  trespass  for  breaking  the  plaintiff's  close  with 
beasts,  and  eating  his  peas,  a  declaration  not  showing  the  quan- 
tity of  peas  has  been  held  sufficient,  "because  nobody  can  meas- 
ure the  peas  that  beasts  can  eat."  So  in  an  action  on  the  case 
for  setting  a  house  on  fire,  per  quod  the  plaintiff  amongst  divers 
other  goods,  ornatus  pro  eqitis  amisit;  after  verdict  for  the  plain- 
tiff it  was  objected  that  this  was  uncertain;  but  the  objection  was 
disallowed  by  the  court.  And  in  this  case  Windham,  J.,  said,  that 
if  he  had  mentioned  only  diver  sa  bona,  yet  it  had  been  well 
enough,  as  a  man  cannot  be  supposed  to  know  the  certainty  of 
his  goods  when  bis  house  is  burnt;  and  added,  that  to  avoid 
prolixity,  the  law  will  sometimes  allow  such  a  declaration. "( ss ) 
***** 

[In  an  action  against  a  railway  company  to  recover  for  an  in- 
jury negligently  inflicted  by  the  company's  servants  on  plaintiff, 
the  complaint,  among  other  things,  alleged  that  the  engineer  of 
the  defendant  negligently  and  "carelessly  gave  his  engine  steam 
and  commenced  to  back  the  locomotive  towards  and  upon  the 
street  car  aforesaid."  Defendant  objected  to  this  on  the  ground 
that  the  cause  of  action  had  not  been  sufficiently  stated,  in  that  it 
did  not  show  more  specifically  how  the  defendant's  engineer  was 
negligent.  The  objection,  however,  was  overruled  and  it  was  held 
that  in  this  case  the  plaintiff  could  not  well  have  made  his  charge 
of  negligence  more  particular,  owing  to  the  nature  of  the  wrong, 
and,  it  being  thus  inconvenient,  no  greater  particularity  would  be 
required.35 

U)  Bac.  Ab..  Pleas,  etc.  (B)  5,  5;  and  p.  409,  5th  Ed.;  Buckley  v. 
Rice  Thomas,  Plo\v  118;  Wimbish  v.  Tailbois,  id.  54;  Partridge  v. 
Strange,  id.  85;  Hartly  v.  Herring,  3  T.  R.  130. 

(ss)   Bac.  Ab.,  Pleas,  etc.,  409. 


35.  Stephenson  v.   South.   R.  Co.,  102  Cal.  143,  34  Pac.   618. 
—61 


962  CERTAINTY   OF   ISSUE)  §    489 

A  more  stringent  rule  appears  to  have  been  adopted  in  a  case 
in  Virginia.  A  count  in  a  declaration  against  a  railway  company 
charged,  in  the  language  of  the  statute  that  the  defendant  failed  to 
keep  its  right  of  way,  at  a  public  crossing  where  the  injury  was 
inflicted  "sufficiently  smooth  and  level  to  admit  of  safe  and  speedy 
travel  over  such  crossing,"  but  on  the  contrary,  through  its  negli- 
gence, the  public  road  at  the  crossing,  and  within  the  defendant's 
right  of  way,  was  rough,  gullied  and  obstructed,  and  that,  the 
plaintiff's  horse  becoming  frightened,  she  was  unable  to  control  it 
as  she  otherwise  could  have  done,  and  that  the  buggy  in  which  she 
was  riding  was  drawn  by  her  horse  with  great  violence  against  .the 
crossing  sign  post  of  the  defendant,  the  buggy  broken,  the  plain- 
tiff thrown  out,  and  the  injuries  complained  of  inflicted.  The 
count  was  held  bad,  on  demurrer,  because  it  failed  to  show  the 
nature  of  the  gullies  and  obstructions  which  it  avers  were  in  the 
highway,  or  how  they  prevented  the  plaintiff  from  controlling  her 
horse,  or  such  a  state  of  facts  as  would  show  that  the  condition 
of  the  highway  was  the  proximate  cause  of  her  injuries.]30 

§  489.  9.  Less  particularity  is  required  when  the  facts 
lie  more  in  the  knowledge  of  the  opposite  party  than 
of  the  party  pleading,  (t) 

This  rule  is  exemplified  in  the  case  of  alleging  title  in  an  ad- 
versary, where  (as  formerly  explained)  a  more  general  statement 
is  allowed  then  when  title  is  set  up  in  the  party  himself.  So  in 
an  action  of  covenant,  the  plaintiff  declared,  that  the  defendant  by 
indenture  demised  to  him  certain  premises,  with  a  covenant  that 
he,  the  defendant,  had  full  power  and  lawful  authority  to  demise 
the  same  according  to  the  form  and  effect  of  the  said  indenture ; 
and  then  the  plaintiff  assigned  a  breach,  that  the  defendant  had 
not  full  power  and  lawful  authority  to  demise  the  said  premises, 
according  to  the  form  and  effect  of  the  said  indenture.  After 
verdict  for  the  plaintiff  it  was  assigned  for  error,  that  he  had  not 

(0  Rider  v.  Smith,  3  T.  R.  766;  Derisley  v.  Custance,  4  T.  R.  77; 
Atty.-Gen.  v.  Meller,  Hard.  459;  Denham  v.  Stephenson,  1  Salk.  335; 
Com.  Dig.,  Pleader  (C.  26);  Robert  Bradshaw's  Case,  9  Rep.  60b; 
Gale  v.  Read,  8  East.  80. 


36.  Norfolk  &  W.  R.  Co.  v.  Gee,  104  Va.  806,  52  &.  E.  572.     But  see 
Penn.  Foundry  v.  Probst,  114  Va.  — ,  76  S.  E.  323. 


§   490  PLEADING   MATTER  OF  INDUCEMENT,  ETC.  963 

in  his  declaration  shown  "what  person  had  right,  title,  estate  or 
interest  in  the  lands  demised,  by  which  it  might  appear  to  the 
court  that  the  defendant  had  not  full  power  and  lawful  authority 
to  demise."  But  "upon  conference  and  debate  amongst  the  jus- 
tices it  was  resolved,  that  the  assignment  of  the  breach  of  cove- 
nant was  good,  for  he  has  followed  the  words  of  the  covenant 
negatively ;  and  it  lies  more  properly  in  the  knowledge  of  the 
lessor  what  estate  he  himself  has  in  the  land  which  he  demises 
than  the  lessee,  who  is  a  stranger  to  it."(w) 


§  490.  10.  Less  particularity  is  necessary  in  the  state- 
ment of  matter  of  inducement  or  aggravation,  than 
in  the  main  allegations,  (v) 

This  rule  is  exemplified  in  the  case  of  the  derivation  of  title, 
where,  though  it  is  a  general  rule  that  the  commencement  of  a 
particular  estate  must  be  shown,  yet  an  exception  is  allowed  if 
the  title  be  alleged  by  way  of  inducement,  only. 

***** 

So  in  trespass,  the  plaintiff  declared  that  the  defendant  broke 
and  entered  his  dwelling-house,  and  "wrenched  and  forced  open, 
or  caused  to  be  wrenched  and  forced  open,  the  closet-doors, 
drawers,  chests,  cupboards,  and  cabinets  of  the  said  plaintiff." 
Upon  special  demurrer  it  was  objected,  that  the  number  of  closet- 
doors,  drawers,  chests,  cupboards,  and  cabinets  was  not  specified. 
But  it  was  answered,  "that  the  breaking  and  entering  the  plain- 
tiff's house  was  the  principal  ground  and  foundation  of  the  pres- 
ent action ;  and  all  the  rest  are  not  foundations  of  the  action,  but 
matters  only  thrown  in  to  aggravate  the  damages,  and  on  that 
ground  need  not  be  particularly  specified."  And  of  that  opinion 
was  the  whole  court,  and  judgment  was  given  for  the  plaintiff,  (w) 

(u)   Robert  Bradshaw's  Case,  9  Rep.  60b. 

(v*)  Co.  Litt.  303a;  Bac.  Ab.,  Pleas,  etc.,  pp.  322,  348  (5th  Ed.); 
Com.  Dig.,  Pleader  (C.  31),  (C.  43),  (E.  10),  (E.  18);  Doct.  PI.  283; 
Wetherell  z:  Clerkson,  12  Mod.  597;  Chamberlain  v.  Greenfield,  3 
\Yils.  292;  Alsope  v.  Sytwell,  Yelv.  17;  Riggs  v.  Bullingham,  Cro. 
Eliz.  715;  Woolaston  v.  Webb,  Hob.  18;  Bishop  of  Salisbury's  Case, 
10  Rep.  59b;  1  Saund.  274,  n.  1. 

(w)   Chamberlain  v.   Greenfield,  3  Wils.  292. 


964  CERTAINTY   OF   ISSUE  §    491 

§  491.  11.  With  respect  to  acts  valid  at  common  law, 
but  regulated  as  to  the  mode  of  performance  by  stat- 
ute, it  is  sufficient  to  use  such  certainty  of  allegation 
as  was  sufficient  before  the  statute,  (x) 

Thus,  by  the  common  law,  a  lease  for  any  number  of  years 
might  be  made  by  parol  only ;  but  by  the  statute  of  frauds,  29  Car. 
2,  c.  3,  s.  1,  2,  all  leases  and  terms  for  years  made  by  parol,  and 
not  put  into  writing,  and  signed  by  the  lessors  or  their  agents  au- 
thorized by  writing,  shall  have  only  the  effect  of  leases  at  will, 
except  leases  not  exceeding  the  term  of  three  years  from  the  mak- 
ing. Yet  in  a  declaration  of  debt  for  rent  on  a  demise,  it  is  suffi- 
cient (as  it  was  at  common  law)  to  state  a  demise  for  any  num- 
ber of  years,  without  showing  it  to  have  been  in  writing,  though 
where  the  lease  is  by  indenture,  the  instrument  is  in  practice  usu- 
ally set  forth.  So,  in  the  case  of  a  promise  to  answer  for  the  debt, 
default,  or  miscarriage,  of  another  person  (which  was  good  by 
parol,  at  common  law,  but  by  the  statute  of  frauds,  §  4,  is  not  valid 
unless  the  agreement,  or  some  memorandum  or  note  thereof  be  in 
writing,  and  signed  by  the  party,  etc.),  the  declaration  on  such 
promise  need  not  allege  a  written  contract,  (y) 

And  on  this  subject  the  following  difference  is  to  be  remarked 
that  "where  a  thing  is  originally  made  by  act  of  parliament,  and 
required  to  be  in  writing,  it  must  be  pleaded  with  all  the  circum- 
stances required  by  the  act;  as  in  the  case  of  a  will  of  lands,  it 
must  be  alleged  to  have  been  made  in  writing;  but  where  an  act 
makes  writing  necessary  to  a  matter  where  it  was  not  so  at  the 
common  law,  as  where  a  lease  for  a  longer  term  than  three  years 
is  required  to  be  in  writing  by  the  statute  of  frauds,  it  is  not  nec- 
essary to  plead  the  thing  to  be  in  writing,  though  it  must  be  proved 
to  be  so  in  evidence." 

As  to  the  rule  under  consideration,  however,  a  distinction  has 
been  taken  between  a  declaration  and  a  plea,  and  it  is  said,  that 
though  in  the  former,  the  plaintiff  need  not  show  the  thing  to  be 
in  writing,  in  the  latter  the  defendant  must.  Thus,  in  an  action 
of  indebitatus  assumpsit,  for  necessaries  provided  for  the  de- 

(A-)   1  Saund.  276,  n.  2;  id.  211;  Anon.,  Salk.  519;  Birch  v.  Bellamy,  12 
Mod.  540;  Bac.  Ab.,  Statute  (L.)  3;  4  Hen.  7,  8. 
(y)   1  Saund.  211;  Anon.,  2  Salk.  519. 


§    491  PLEADING    MATTERS   OF    COMMON    LAW  965 

fendant's  wife,  the  defendant  pleaded  that  before  the  action  was 
brought,  the  plaintiff  and  defendant,  and  one  J.  B.,  the  defend- 
ant's son,  entered  into  a  certain  agreement,  by  which  the  plaintiff, 
in  discharge  of  the  debt  mentioned  in  the  declaration,  was  to  ac- 
cept the  said  J.  B.  as  her  debtor  for  £9,  to  be  paid  when  he  should 
receive  his  pay  as  lieutenant ;  and  that  the  plaintiff  accepted  the 
said  J.  B.  for  her  debtor,  etc.  Upon  demurrer,  judgment  was 
given  for  the  plaintiff,  for  two  reasons ;  first,  because  it  did  not 
appear  that  there  was  any  consideration  for  the  agreement;  sec- 
ondly, that,  admitting  the  agreement  to  be  valid,  yet  by  the  stat- 
ute of  frauds,  it  ought  to  be  in  writing,  or  else  the  plaintiff  could 
have  no  remedy  thereon;  "and  though  upon  such  an  agreement, 
the  plaintiff  need  not  set  forth  the  agreement  to  be  in  writing,  yet 
when  the  defendant  pleads  such  an  agreement  in  bar,  he  must 
plead  it  so  as  it  may  appear  to  the  court  that  an  action  will  lie  upon 
it;  for  he  shall  not  take  away  the  plaintiff's  present  action,  and 
not  give  her  another  upon  the  agreement  pleaded. "(.sr)37 

(z)  Case  v.  Barber,  Raym.  450.  It  is  to  be  observed  that  the  plea 
was  at  all  events  a  bad  one  in  reference  to  the  first  objection.  The 
case  is,  perhaps,  therefore,  not  decisive  as  to  the  validity  of  the  sec- 
ond. 


37.  See  Eaves  v.  Vial,  98  Va.  134,  34  S.  E.  978;  5  Va.  Law  Reg.  794. 


CHAPTER  LIIL 

RULES  WHICH  TEND   TO   PREVENT  OBSCURITY  AND  CONFUSION 

IN  PLEADING. 

RULE    I. 
§  492.  Pleadings   must  not  be  insensible  nor  repugnant. 

RULE   II. 

§  493.  Pleadings  must  not  be  ambiguous,  or  doubtful  in  meaning;   and 
when  two   diffe\rent  meanings  present  themselves,  that  con- 
struction shall  be  adopted  which  is  most  unfavorable  to  the 
party  pleading. 
§  494.  Negative    pregnant. 

RULE    III. 
§  495.  Pleadings  must  not   be  argumentative. 

RULE    IV. 

§  496.  Pleadings   must   not   be   in   the   alternative. 

RULE    V. 

§  497.  Pleadings  must  not  be  by  way  of  recital,  but  must  be  positive  in 
their  form. 

RULE    VI. 

§  498.  Things  are  to  be  pleaded  according  to  their  legal  effect  or  oper- 
ation. 

RULE    VII. 

§  499.  Pleadings  should   observe   the   known   and  ancient  forms   of  ex- 
pression, as  contained   in  approved  precedents. 

RULE   VIII. 

§  500.  Pleadings  should   have   their  proper  formal  commencements  and 

conclusions. 

§  501.  Variations   in   forms. 
§  502.  Improper  commencements  or  conclusions. 

RULE    IX. 
§  503.  A  pleading  which  is  bad  in  part  is  bad  altogether. 

RULE  I. 

§  492.    Pleadings    must    not    be    insensible    nor    repug- 
nant, (a) 
First,  if  a  pleading    be    unintelligible   (or  in  the  language  of 

(a)   Com.  Dig.,  Pleader   (C.  23);   Wyat  v.  Aland,  1  Salk.  324;   Bac. 
Ab.,   Pleas,   etc.    (I.)    4;    Nevil  v.    Soper,    1    Salk.   213;    Butt's   Case,  7 


§    492,  PLEADINGS  MUST  NOT  BE  INSENSIBLE  NOR  REPUGNANT      967 

pleading,  insensible),  by  the  omission  of  material  words,  etc., 
this  vitiates  the  pleading. (b) 

Again,  if  a  pleading  be  inconsistent  with  itself,  or  repugnant, 
this  is  ground  for  demurrer. 

Thus,  where,  in  an  action  of  trespass,  the  plaintiff  declared  for 
taking  and  carrying  away  certain  timber,  lying  in  a  certain  place, 
for  the  completion  of  a  house  then  lately  built,  this  declaration 
was  considered  as  bad  for  repugnancy ;  for  the  timber  could  not 
be  for  the  building  of  a  house  already  built,  (c)  So,  where  the 
defendant  pleaded  a  grant  of  a  rent,  out  of  a  term  of  years,  and 
proceeded  to  allege  that,  by  virtue  thereof  he  was  seized  in  his 
demesne,  as  of  freehold,  for  the  term  of  his  life,  the  plea  was 
held  bad  for  repugnancy. (d) 

[So,  where  T  bought  a  scholarship  of  S  under  a  contract  that 
"A  full  course  might  be  taken  by  him  until  he  was  proficient  in 
said  lines  selected  without  limited  time,"  and  S  expelled  T  from 
his  school  without  excuse,  and  T  sued  S  for  the  amount  paid 
for  the  scholarship,  and  in  the  same  declaration  relied  upon  the 
contract  as  existing,  and  also  claimed  damages  for  the  breach. 
It  was  held  that  T  could  not  treat  the  contract  as  rescinded  and 
as  existing  in  the  same  action,  that  the  two  claims  were  repug- 
nant.1 And  so,  where  the  plaintiff  alleged  that  a  certain  agent 
had  special  authority  to  sell  him, a  ticket  over  defendant's  road, 
and  later  in  his  declaration  alleged  that  he  was  ignorant  of  the 
withdrawal  of  the  agent's  authority  to  sell  said  ticket,  the  decla- 
ration was  held  bad  for  repugnancy.2  So,  in  an  action  of  debt 
on  a  bond  conditioned  for  the  performance  of  the  covenants  of 
a  lease,  where  the  defendant  pleaded  that  by  mutual  consent  the 
contract  in  the  lease  was  rescinded  and  the  lease  itself  cancelled, 
and  the  plaintiff  replied  admitting  those  facts,  but  alleging  a 

Rep.  25;  Hutchinson  v.  Jackson,  2  Lut.  1324;  Vin.  Ab.,  Abatement 
(D.  a.). 

(&)   Com.  Dig.,  Pleader  (C.  23);  Wyat  v.  Aland,  1   Salk.  324. 

(c)  Nevil  v.   Soper,  1   Salk.   213. 

(d)  Butt's  Case,  7  Rep.  25a. 


1.  Timmerman  v.   Stanley,  123  Ga.  850,  51   S.    E.   760 

2.  Florida  Cent.  R.  Co.  v.  Ashmore,  43  Fla.  272,  32  South.  832. 


968  RULES  TO  PREVENT  OBSCURITY  .§   493 

parol  agreement  that  the  terms  of  the  lease  should  continue  in 
force  and  be  secured  by  the  bond,  the  replication  was  held  bad 
for  repugnancy.] 

But  there  is  this  exception;  that  if  the  second  allegation,  which 
creates  the  repugnancy  is  merely  superfluous  and  redundant,  so 
that  it  may  be  rejected  from  the  pleading,  without  materially 
altering  the  general  sense  and  effect,  it  shall  in  that  case  be  re- 
jected— at  least,  if  laid  under  a  videlicet — and  shall  not  vitiate 
the  pleading;  for  the  maxim  is  utile,  per  inutile,  non  vitiatur.(e) 

[Frequently  a  defendant  may  desire  to  make  inconsistent  de- 
fences, and  while  he  cannot  do  this  in  a  single  plea,  because  it 
will  render  the  plea  repugnant,  he  may  do  so  by  separate  pleas 
and  it  is  not  permissible  to  look  from  one  plea  to  another  to  dis- 
cover the  repugnancy,  as  this  would  in  effect  deprive  the  defend- 
ant of  the  right  given  him  by  statute  to  plead  as  many  several 
matters  of  law  or  fact  as  he  pleases.]3 

RULE  II. 

§  493.  Pleadings  must  not  be  ambiguous,  or  doubtful  in 
meaning;  and  when  two  different  meanings  present 
themselves,  that  construction  shall  be  adopted  which 
is  most  unfavorable  to  the  party  pleading.  (/) 

Thus,  if  in  trespass  quare  clausum  fregit,  the  defendant  pleads 
that  the  locus  in  quo  was  his  freehold,  he  must  allege  that  it  was 
his  freehold  at  the  time  of  the  trespass;  otherwise,  the  plea  is 
insufficient,  (g)  So,  in  debt  on  a  bond,  conditioned  to  make  as- 
surance of  land,  if  the  defendant  pleads  that  he  executed  a  re- 

O)  Gilb.  C.  P.  131-2;  The  King  r.  Stevens,  5  East,  255;  Wyat 
v.  Ayland,  1  Salk.  324-5;  2  Saund.  291,  n.  (1),  306,  n.  14;  Co.  Litt. 
303b. 

(/)  Co.  Litt.  303b;  Purcell  v.  Bradley,  Yelv.  36;  Dovaston  v.  Payne, 
2  H.  Bl.  530;  Thornton  v.  Adams,  5  M.  &  S.  38;  Rose  v.  Standen,  2 
Mod.  295;  Lord  Huntingtower  v.  Gardine,  1  Barn.  &  Cres.  297; 
Fletcher  v.  Pogson,  3  Barn.  &  Cres.  192;  6  Barn.  &  Cres.  295. 

(g)  Com.  Dig.,  Pleader  (E.  5). 


3.  McNutt  v.  Young,  8  Leigh   542-553. 


§   494  NEGATIVE  PREGNANT  969 

lease,  his  plea  is  bad,  if  it  does  not  express  that  the  release  con- 
cerns the  same  land.(h)4 

***** 

[So,  where  in  an  action  of  assumpsit  there  are  two  Hogans 
and  two  Purdys  named  in  the  declaration,  and  in  setting  out  the 
contract  sued  on  it  was  stated  to  have  been  made  by  the  Messrs. 
Purdy  and  Hogan,  upon  a  demurrer  to  the  declaration  it  was 
held  that  this  form  of  statement  was  indefinite  and  ambiguous, 
and  hence  the  demurrer  to  the  declaration  should  be  sustained.]5 
A  pleading,  however,  is  not  objectionable  as  ambiguous  or 
obscure  if  it  be  certain  to  a  common  intent, (i)  that  is,  if  it  be 
clear  enough  according  to  reasonable  intendment  or  construction  ; 
though  not  worded  with  absolute  precision.  Thus,  in  debt  on  a 
bond  conditioned  to  procure  A.  S.  to  surrender  a  copyhold  to 
the  use  of  the  plaintiff,  a  plea  that  A.  S.  surrendered  and  re- 
leased the  copyhold  to  the  plaintiff  in  full  court,  and  the  plaintiff 
accepted  it,  without  alleging  that  the  surrender  was  to  the  plain- 
tiff's use,  is  sufficient;  for  this  shall  be  intended. (/)  So  in  debt 
on  a  bond  conditioned  that  the  plaintiff  shall  enjoy  certain  land, 
etc.,  a  plea  that  after  the  making  of  the  bond  until  the  day  of 
exhibiting  the  bill,  the  plaintiff  did  enjoy,  is  good;  though  it  be 
not  said  that  always  after  the  making,  until,  etc.,  he  enjoyed  ; 
.for  this  shall  be  intended. (k) 

§  494.    Negative  pregnant. 
It  is  under  this  head  of  ambiguity  that  the  doctrine  of  nega- 

(h)   Com.  Dig.,  ubi.  supra,  Manser's  Case,  2  Rep.  3. 

(0  Com.  Dig.,  Pleader  (E.  7),  (F.  17);  1  Saund.  49,  n.  1;  Long's 
Case,  5  Rep.  121a;  Doc.  PI.  58;  Colthirst  v.  Bejushin,  Plow.  26,  28, 
33;  Fulmerston  v.  Steward,  ibid.  102;  Cooper  v.  Monke,  Willes,  52;  The 
King  v.  Lyme  Regis.  1  Doug.  158;  Hammond  v.  Dodd,  Cro.  Car.  5; 
Poynter  v.  Poynter,  ibid.  194;  Dovaston  v.  Payne,  2  H.  Bl.  530;  Jacobs 
V.  Nelson,  3  Taunt.  423. 

(/)   Hammond   v.    Dodd,    Cro.    Car.   6. 

(It)   Harlow  v.  Wright.  Cro.  Car.  105. 


4.  Many    objections,    however,    which    would    be    good    if   made    in 
time,  come  too  late  after  verdict.     See,  in  this  connection,  Va.  Code, 
§  3449. 

5.  Lydick  v.  B.  &  O.  Ry.   Co.,  17  W.  Va.  427. 


970  RULES  TO  PREVENT  OBSCURITY  §    494 

fives  pregnant  appears  most  properly  to  range  itself.  A  negative 
pregnant  is  such  a  form  of  negative  expression  as  may  imply  or 
carry  within  it  an  affirmative.  This  is  considered  as  a  fault  in 
pleading ;  and  the  reason  why  it  is  so  considered  is  that  the  mean- 
ing of  such  a  form  of  expression  is  ambiguous.  In  trespass,  for 
entering  the  plaintiff's  house,  the  defendant  pleaded  that  the 
plaintiff's  daughter  gave  him  license  to  do  so ;  and  that  he  en- 
tered by  that  license.  The  plaintiff  replied,  that  he  did  not  enter 
by  her  license.  This  was  considered  as  a  negative  pregnant; 
and  it  was  held,  that  the  plaintiff  should  have  traversed  the  en- 
try by  itself,  or  the  license  by  itself,  and  not  both  together. (/) 
It  will  be  observed,  that  this  traverse  might  imply  or  carry 
within  it  that  a  license  was  given,  though  the  defendant  did  not 
enter  by  that  license.  It  is,  therefore,  in  the  language  of  plead- 
ing, said  to  be  pregnant  with  that  admission,  viz,  that  a  license 
was  given,  (m)  At  the  same  time  the  license  is  not  expressly 
admitted ;  and  the  effect,  therefore,  is  to  leave  it  in  doubt  whether 
the  plaintiff  means  to  deny  the  license,  or  to  deny  that  the  de- 
fendant entered  by  virtue  of  that  license.  It  is  this  ambiguity 
which  appears  to  constitute  the  fault. (n) 

*  *  *  *          .      * 

[Where  the  plaintiff  alleged  that  the  defendant  wrongfully 
took  and  detained  his  goods,  and  the  defendant  pleaded  that  he 
did  not  wrongfully  take  and  detain  the  plaintiff's  goods,  the  plea 
was  held  to  involve  a  negative  pregnant  and  was  therefore  bad.]6 

This  rule,  however,  against  a  negative  pregnant  appears,  in 
modern  times  at  least,  to  have  received  no  very  strict  construc- 
tion. For  many  cases  have  occurred  in  which,  upon  various 
grounds  of  distinction  from  the  general  rule,  that  form  of  ex- 
pression has  been  held  free  from  objection. (0}  Thus,  in  debt 
on  a  bond  conditioned  to  perform  the  covenants  in  an  indenture 
of  lease,  one  of  which  covenants  was,  that  the  defendant,  the 

(0   Myn  v.   Cole,   Cro.  Jac.  87. 
(m)   Bac.  Ab.,  Pleas,  etc.,  p.  420,  5th  Ed. 

(n)  28  Hen.  6,  7;  Slade  v.  Drake,  Hob.  295;  Styles'  Pract.  Reg., 
tit.  Negative  Pregnant. 

(0)  See  several  cases  mentioned  in  Com.   Dig.,  Pleader   (R.  6). 


6.  Moser  v.   Jenkins,   5   Ore.   448. 


§    495  PLEADINGS    MUST    NOT    BE    ARGUMENTATIVE  971 

lessee,  would  not  deliver  possession  to  any  but  the  lessor  or  such 
persons  as  should  lawfully  evict  him,  the  defendant  pleaded,  that 
he  did  not  deliver  the  possession  'to  any  but  such  as  lazn'fully 
evicted  him.  On  demurrer  to  this  plea,  it  was  objected  that  the 
same  was  ill,  and  a  negative  pregnant;  and  that  he  ought  to  have 
said  that  such  an  one  lawfully  evicted  him,  to  whom  he  deliv- 
ered the  possession,  or  that  he  did  not  deliver  the  possession  to 
any;  but  the  court  held  the  plea,  as  pursuing  the  icords  of  the 
covenant,  good  (being  in  the  negative),  and  that  the  plaintiff 
ought  to  have  replied  and  assigned  a  breach;  and  therefore  judg- 
ment was  given  against  him. (/>) 

RULE  III. 
§  495.    Pleadings   must  not  be  argumentative,  (q) 

In  other  words,  they  must  advance  their  positions  of  fact  in  an 
absolute  form,  and  not  leave  them  to  be  collected  by  in  inference 
and  argument  only. 

***** 

In  an  action  of  trespass  for  taking  and  carrying  away  the  plain- 
tiff's goods,  the  defendant  pleaded  that  the  plaintiff  never  had  any 
goods ;  upon  which  the  court  remarked,  "this  is  an  infallible  argu- 
ment that  the  plaintiff  is  not  guilty,  and  yet  it  is  no  plea."(r) 

***** 

It  is  a  branch  of  this  rule  that  tzvo  affirmatives  do  not  make  a 
good  issue. (s)  The  reason  is  that  the  traverse  by  the  second  af- 
firmative is  argumentative  in  its  nature.  Thus,  if  it  be  alleged  by 
the  defendant  that  a  party  died  seized  in  fee,  and  the  plaintiff  al- 
leged that  he  died  seized  in  tail,  this  is  not  a  good  issue ;(/)  be- 
cause the  latter  allegation  amounts  to  a  denial  of  a  seizin  fee,  but 
denies  it  by  argument  or  inference  only.  It  is  this  branch  of  the 

(/>)  Pullin  r.  Nicholas,  1  Lev.  83,  Vide  Com.  Dig.,  Pleader  (R.  6). 
Semb.  cont..  Lea  v.  Luthell,  Cro.  Jac.  559. 

(<?)   Bac.  Ab.,  Pleas,  etc.   (I)  5;  Com.  Dig.   (E.  3);  Co.  Litt.  303a. 

(r)   Doct.    PI.   41;    Dyer,   43. 

(s)  Com.  Dig.,  Pleader  (R.  3);  Co.  Litt.  126a;  per  Buller,  J.,  Chan- 
dler v.  Roberts,  Doug.  90;  Doct.  PI.  43;  Zouch  &  Barnfield's  Case,  1 
Leon,  77;  Tomlin  v.  Surface,  1  Wils.  6. 

(0   Doct.  PI.  349;   5  Hen.  7,  11,  12. 


972  RULES  TO   PREVENT    OBSCURITY  §    496 

rule  against  argumentativeness  that  gave  rise  (as  in  part  already 
explained)  to  the  form  of  a  special  traverse. 


Another  branch  of  the  rule  against  argumentativeness  is  that 
two  negatives  do  not  make  a  good  issue,  (M)  Thus,  if  the  defend- 
ant plead  that  he  requested  the  plaintiff  to  deliver  an  abstract  of 
his  title,  but  that  the  plaintiff  did  not,  when  so  requested,  deliver 
such  abstract,  but  neglected  so  to  do,  the  plaintiff  cannot  reply 
that  he  did  not  neglect  and  refuse  to  deliver  such  abstract,  but 
should  allege  affirmatively  that  he  did  deliver. (v) 

RULE  IV. 

§  496.    Pleadings  must  not  be  in  the  alternative,  (w) 

Thus  in  an  action  of  debt  against  a  gaoler  for  the  escape  of  a 
prisoner,  where  the  defendant  pleaded  that  if  the  said  prisoner, 
did  at  any  time  or  times  after  the  said  commitment,  etc.,  go  at 
large,  he  so  escaped  without  the  knowledge  of  the  defendant  and 
against  his  will ;  and  that  if  any  such  escape  was  made,  the  pris- 
oner voluntarily  returned  into  custody  before  the  defendant  knew 
of  the  escape,  etc.,  the  court  held  the  plea  bad;  for,  "he  cannot 
plead  hypothetically  that  if  there  has  been  an  escape,  there  has 
also  been  a  return.  He  must  either  stand  upon  an  averment  that 
there  has  been  no  escape,  or  that  there  have  been  one,  two,  or 
ten  escapes;  after  which  the  prisoner  returned." (,r)7 

So  where  it  was  charged  that  the  defendant  wrote  and  pub- 
lished, or  caused  to  be  written  or  published,  a  certain  libel,  this 
was  considered  as  bad  for  uncertainty. 

[So  where  the  plaintiff  in  an  action  of  tort  alleged  that  the  loss 
and  damages  occurred  "By  reason  of  the  negligence  of  one  or  the 

(M)   Com.    Dig.,   Pleader    (R.   3). 

(v)   Martin  v.  Smith,  6  East.   557. 

(w)  Griffith  v.  Eyles,  1  Bos.  &  Pul.  413;  Cook  v.  Cox,  3  M.  &  S. 
114;  The  King  v.  Brereton,  8  Mod.  330;  Witherley  v.  Sarsfield,  1 
Show.  127;  Rex  v.  Morley,  1  You.  &  Jer.  221. 

O)   Griffith  v.   Eyles,  1   Bos.  &  Pul.  413. 


7.  The  difficulties  here  presented  are  easily  avoided  by  the  plead- 
er's using  several  counts  in  his  declaration,  or  filing  several  pleas 
setting  out  the  facts  as  they  may  develop  upon  the  trial. 


§    497  PLEADINGS   MUST   NOT   BE  BY  WAY  OF  RECITAL  973 

other  of  defendants,  or  of  both  of  defendants,  and  as  to  which 
the  plaintiff  is  unable  to  say  as  to  whether  one  or  the  other,  or 
both,  but  one  of  these  alternatives  is  true,"  the  plea  was  held  bad 
for  being  in  the  alternative.8  So  where  the  plaintiff  in  an  action 
of  tort  alleged  that  the  defendant,  or  his  family,  set  his  dogs  upon 
the  plaintiff's  swine,  the  declaration  was  held  bad  as  being  in  the 
alternative.9  So  in  an  action  on  a  bond  where  the  defendant 
averred  in  his  plea  that  the  obligees  "or  some  of  them"  released 
a  part  of  the  debt  specified  in  the  bond,  the  plea  was  held  bad  as 
being  in  the  alternative,  but  where  in  an  action  for  personal  in- 
juries the  complaint  averred  that  the  act  complained  of  was  "wil- 
fully or  wantonly  done,"  it  was  held  that  the  complaint  was  not 
bad  as  being  in  the  alternative,  as  wantonness  was  the  legal  equiv- 
alent of  wilfulness.]10 

RULE  V. 

§  497.    Pleadings  must  not  be  by  way  of  recital,  but  must 
be  positive  in  their  form,  (y) 

The  following  example  may  be  adduced  to  illustrate  this  kind 
of  fault.  If  a  declaration  in  trespass  for  assault  and  battery  make 
the  charge  in  the  following  form  of  expression :  "And  thereupon 

the  said  A.  B.  by ,  his  attorney,  complains,  for  that  whereas 

the  said  C.  D.  heretofore,  to  wit,  etc.,  made  an  assault,"  etc.,  in- 
stead of  "for  that  the  said  C.  D.  heretofore,  to  wit,  etc.,  made  an 
assault,"  etc.,  this  is  bad,  for  nothing  is  positively  affirmed,  (z) X1 

(y)  Bac.  Ab.,  Pleas,  etc.  (B.  4);  Shetland  v.  Heaton,  2  Bulst.  214; 
Wettenhall  v.  Sherwin,  2  Lev.  206;  Hore  v.  Chapman,  2  Salk.  636; 
Dunstall  v.  Dunstall,  2  Show.  27;  Gourney  v.  Fletcher,  id.  295;  Dobbs 
v.  Edmunds,  Lord  Raym.  1413;  Wilder  v.  Handy,  Stra.  1151;  Marshall 
r.  Riggs,  Ibid.  1162. 

(2)  It  will  be  observed,  however,  that  in  trespass  on  the  case  the 
"whereas"  is  unobjectionable,  being  used  only  as  introductory  to 
some  subsequent  positive  allegation.  See  citations  in  (y). 


8.  Brown  r.  Illinois  Cent.   R.  Co.,  100  Ky.  525,  38  S.  W.  862. 

9.  Tifft  v.  Tifft    (N.   Y.),  4  Denio   175. 

10.  Mobile,  J.  &  K.  C.  Ry.  Co.  v.  Smith,  146  Ala.  312,  40  South.  763. 

11.  Spiker  r.   Borer,  37  W.  Va.  258,  16  S.  E.  575.     See,  also,  Cooke 
T-.   Simms,  2  Call  39;   So.   R.  Co.  v.  Willcox,  98  Va.  222,  35  S.   E.  355. 


974  RULES  TO  PREVENT  OBSCURITY  §    498 

So  where  a  deed  or  other  instrument  is  pleaded,  it  is  in  general 
not  proper  to  allege  (though  in  the  words  of  the  instrument  it- 
self) that  it  is  ivitnessed  (testatum  e.ristit')  that  such  a  party 
granted,  etc. ;  but  it  should  be  stated  absolutely  and  directly  that 
he  granted,  etc.  But  as  to  this  point  a  difference  has  been  es- 
tablished between  declarations  and  other  pleadings.  In  the  for- 
mer (for  example,  in  a  declaration  of  covenant)  it  is  sufficient  to 
set  forth  the  instrument  with  a  testatum  existit,  though  not  in  the 
latter.  And  the  reason  given  is,  that  in  a  declaration  such  state- 
ment is  merely  inducement,  that  is,  introductory  to  some  other  di- 
rect allegation.  Thus  in  covenant  it  is  introductory  to  the  assign- 
ment of  the  breach. 

RULE  VI. 

§  498.    Things  are  to  be  pleaded  according  to  their  legal 
effect  or  operation,  (a) 

The  meaning  is  that  in  stating  an  instrument  or  other  matter 
in  pleading,  it  should  be  set  forth  not  according  to  its  tenor,  but 
according  to  its  effect  in  law;  and  the  reason  seems  to  be  that  it  is 
under  the  latter  aspect  that  it  must  principally  and  ultimately  be 
considered,  and,  therefore  to  plead  it  in  terms  or  form  only,  is  an 
indirect  and  circuitous  method  of  allegation.  Thus,  if  a  joint  ten- 
ant conveys  to  his  companion  by  the  words  "gives,"  "grants,"  etc., 
his  estate  in  the  lands  holden  in  jointure,  this,  though  in  its  terms 
a  grant.,  is  not  properly  such  in  operation  of  law,  but  amounts  to 
that  species  of  conveyance  called  a  release.  It  should  therefore 
be  pleaded  not  that  he  "granted,"  etc.,  but  that  he  "released," 
etc. (b)  So  if  a  tenant  for  life  grant  his  estate  to  him  in  rever- 
sion, this  is  in  effect  a  surrender,  and  must  be  pleaded  as  such,  and 
not  as  a  grant. (c)  So  where  the  plea  stated  that  A.  was  entitled 

(a)  Bac.  Ab.,  Pleas,  etc.  (I.)  7;  Com.  Dig.,  Pleader  (C.  37);  2 
Saund.  97,  and  97b,  n.  2;  Barker  v.  Lade,  4  Mod.  150;  Moore  v.  Earl 
of  Plymouth,  3  Barn.  &  Aid.  66;  Howell  v.  Richards,  11  East,  633; 
Stroud  v.  Lady  Gerrard.  1  Salk.  8;  1  Saund.  235b,  n.  (9);  Pike  v. 
Eyn,  9  Barn.  &  Cres.  909. 

(&)  2  Saund.  97;   Barker  v.   Lade,  4  Mod.   150-1. 

(c)   Barker  v.   Lade,  4   Mod.   151. 


§  498  PLEADING  ACCORDING  TO  EFFECT  975 

to  an  equity  of  redemption,  and  subject  thereto  that  B.  was  seized 
in  fee,  and  that  they  by  lease  and  release  granted,  etc.,  the  prem- 
ises, excepting  and  reserving  to  A.  and  his  heirs,  etc.,  a  liberty  of 
hunting,  etc. ;  it  was  held  upon  general  demurrer,  and  afterwards 
upon  writ  of  error,  that  as  A.  had  no  legal  interest  in  the  land, 
there  could  be  no  reservation  to  him ;  that  the  plea,  therefore,  al- 
leging the  right  (though  in  terms  of  the  deed)  by  way  of  reserva- 
tion was  bad ;  and  that  if  (as  was  contended  in  argument)  the 
deed  would  operate  as  a  grant  of  the  right,  the  plea  should  have 
been  so  pleaded,  and  should  have  alleged  a  grant  and  not  a  reser- 
vation, (d)1* 

The  rule  in  question  is  in  its  terms  often  confined  to  deeds  and 
conveyances.  It  extends,  however,  to  all  instruments  in  writing, 
and  contracts  written  or  verbal ;  and  indeed  it  may  be  said  gen- 
erally to  all  matters  or  transactions  whatever  which  a  party  may 
have  occasion  to  allege  in  pleading,  and  in  which  the  form  is  dis- 
tinguishable from  the  legal  effect.  But  there  is  an  exception  in 
the  case  of  a  declaration  for  written  or  verbal  slander,  where  (as 
the  action  turns  on  the  words  themselves)  the  words  themselves 
must  be  set  forth ;  and  it  is  not  sufficient  to  allege  that  the  defend- 
ant published  a  libel  containing  false  and  scandalous  matter  in 
substance,  as  follows,  etc.,  or  used  words  to  the  effect  following, 
etc.(<?) 

(d)   Moore  v.   Earl  of  Plymouth,  3  Barn.  &  Aid.  66. 
O)   Wright  v.   Clements.  3   Barn.   &  Aid.   503:    Cook  v.   Cox,   3   M. 
&  S.  110;   Newton  v.   Stubbs.  2   Show.  435. 


12.  Few,  if  any,  of  these  allegations,  would  now  be  regarded  even 
on  demurrer,  though  the  rule  itself  is  correct.  Under  §  3272  of  the 
Code  it  is  declared  that  on  a  demurrer  (unless  it  be  to  a  plea  in 
abatement),  the  court  shall  not  regard  any  defect  or  imperfection 
in  the  declaration  or  pleadings,  whether  it  has  been  heretofore 
deemed  mispleading  or  insufficient  pleading  or  not,  unless  there 
be  omitted  something  so  essential  to  the  action  or  defence  that 
judgment  according  to  the  law  and  the  very  right  of  the  case  can- 
not be  given. 


976  RULES   TO    PREVENT    OBSCURITY  §    499 

RULE  VII. 

§  499.  Pleadings  should  observe  the  known  and  ancient 
forms  of  expression,  as  contained  in  approved  preced- 
ents. (/) 

Thus  the  forms  of  original  writs  and  of  declarations  contained 
in  the  first  chapter  present  various  specimens  of  technical  lan- 
guage, appropriate  from  the  remotest  times  to  each  particular 
cause  of  action,  from  which  it  would  be  inartificial  and  incorrect 
to  deviate.  Some  of  the  general  issues  also  present  examples  of 
forms  of  expression  fixed  by  ancient  usage,  from  which  it  is  im- 
proper to  depart.  And  another  illustration  of  this  rule  occurs  in 
the  following  modern  case.  To  an  action  on  the  case,  the  defend- 
ants pleaded  the  statute  of  limitations,  viz,  that  they  were  not 
guilty  urithin  six  years,  etc.  The  court  decided  upon  special  de- 
murrer that  this  form  of  pleading  was  bad,  upon  the  ground  that 
"from  the  passing  of  the  statute  to  the  present  case,  the  invari- 
able form  of  pleading  the  statute  to  an  action  on  the  case  for  a 
wrong  has  been  to  allege  that  the  cause  of  action  did  not  accrue 
within  six  years,  etc. ;  and  that  it  was  important  to  the  adminis- 
tration of  justice  that  the  usual  and  established  forms  of  plead- 
ing should  be  observed."  (g} 

It  may  be  remarked,  however,  with  respect  to  this  rule,  that 
the  allegations  to  which  it  relates  are  of  course  only  those  of  fre- 
quent and  ordinary  recurrence;  and  that  even  as  to  these  it  is 
rather  of  uncertain  application,  as  it  must  be  often  doubtful 
whether  a  given  form  of  expression  has  been  so  fixed  by  the 
course  of  precedents  as  to  admit  of  no  variation.13 

Another  rule  connected  in  some  measure  with  the  last,  and  ap- 
parently referable  to  the  same  object,  is  the  following: 

(/)  Com.  Dig.,  Abatement  (G.  7);  Buckley  v.  Rice  Thomas,  Plow. 
123;  Dally  v.  King,  1  H.  Blk.  1;  Slade  v.  Dowland,  2  Bos.  &  Pul. 
570;  Dowland  v.  Slade,  5  East,  272;  King  v,  Fraser,  C  East,  351; 
Dyster  v.  Battye,  3  Barn.  &  Aid.  448;  Per  Abbott,  C.  J.,  Wright  v. 
Clements,  id.  507. 

(g)   Dyster  v.  Battye,  3  Barn.  &  Aid.  448. 


13.  Mere  matters  of  form  in  pleadings  (except  in  pleas  in  abate- 
ment) are  for  the  most  part  no  longer  regarded  as  material,  or  as 
vitiating  the  pleading.  See  Code,  §§  3245,  3246,  3272. 


§    500    PLEADINGS  SHOULD  HAVE  FORMAL  COMMENCEMENTS        977 

RULE  VIII. 

§   500.    Pleadings  should  have  their  proper  formal  com- 
mencements and  conclusions. 


This  rule  refers  to  certain  formulae  occurring  at  the  commence- 
ment of  pleadings  subsequent  to  the  declaration,  and  to  others 
occurring  at  the  conclusion. 

A  formula  of  the  latter  kind,  inasmuch  as  it  prays  the  judg- 
ment of  the  court  for  the  party  pleading,  is  often  denominated 
the  prayer  of  judgment. 

A  PLEA  TO  THE  JURISDICTION  has  usually  no  commencement 
of  the  kind  in  question.  (  h  )'  Its  conclusion  is  as  follows: 

—  the  said  defendant  prays  judgment,  if  the  court  of  our  lord  the 
king  here  will  or  ought  to  have  further  cognizance  of  the  plea(i) 
aforesaid. 

or  (in  some  cases)  thus: 

—  the  said  defendant  prays  judgment  if  he  ought  to  be  compelled 
to  answer  to  the  said  plea  here  in  court.  (/) 

A  PLEA  IN  SUSPENSION  seems  also  to  be  in  general  pleaded 
without  formal  commencement.  (k)  Its  conclusion  is  thus: 

—the  said   defendant  prays  that  the  suit   may   remain  or  be  re- 
spited without  day  until,  etc. 

A  PLEA  IN  ABATEMENT  is  also  usually  pleaded  without  a  formal 

(gg)  Co.  Litt.  303b;  Com.  Dig.  Pleader  (E.  27),  (E.  28),  (E..32), 
(E.  33),  (F.  4),  (F.  5),  (G.  1);  Com.  Dig.  Abatement  (I.  12);  2 
Saund.  209,  n.  (1);  Per  Holt,  C.  J.  Bower  v.  Cook,  5  Mod.  146. 

(h)  1  Chitty,  450,  but  sometimes  it  has  such  commencement.  See 
Ibid. 

(i)   1  Went,  49;  3  Bl.  Com.  303;  Powers  v.  Cook,  Ld.  Raym.  63. 

(/)  1  Went,  41,  49;  Bac.  Ab.,  Pleas,  etc.  (E.)  2;  Per  Holt,  C.  J., 
Bowyer  v.  Cook,  5  Mod.  146;  Powers  v.  Cook,  Ld.  Raym.  63. 

(£)  2  Chitty,  472;  Plosket  v.  Beeby,  4  East.  485. 


14.  Pleadings  should  have  the  proper  entitlement  of  the  court  in 
which  they  are  filed,  but  this  is  a  mere  matter  of  form,  and  as  to 
pleas  in  bar  is  no  longer  a  ground  of  objection  in  Virginia.  The 
statute  provides  that  a  plea  shall  commence,  "The  defendant  says 
that:"  Code,  §  3269.  See,  also,  §§  3245,  3246  and  3272.  Pleas  in 
abatement,  however,  must  be  good  in  form  as  well  as  substance. 
Horton  v.  Townes,  6  Leigh  47;  Guarantee  Co.  v.  First  Nat.  Bank, 
95  Va.  480,  28  S.  E.  909. 
—62 


978  RULES  TO  PREVENT  OBSCURITY  §    500 

commencement  within  the  meaning  of  this  rule.(/)  The  conclu- 
sion is  thus : 

in  case  of  plea  founded  on  objection  to  the  frame  of  the  original 
writ  (in  real  or  mixed)  on  the  declaration  (in  personal)  actions — 
— prays  judgment  of  the  said  writ  (or  declaration),  and  that  the 
same  may  be  quashed. (m) 

in  case  of  plea  founded  on  the  disability  of  the  party — 

— prays  judgment,  if  the  said  plaintiff  ought  to  be  answered  to 
his  said  declaration. («) 

A  PLEA  IN  BAR,  until  the  change  of  practice  introduced  by  the 
recent  rule  of  Hil.  T.  4  W.  4,  had  this  commencement : 

— says  that  the  said  plaintiff  ought  not  to  have  or  maintain  his 
aforesaid  action  against  him  the  said  defendant,  because  he  says, 
etc. 

This  formula  is  called  actio.  non. 
The  conclusion  was, 

— prays  judgment  if  the  said  plaintiff  ought  to  have  or  maintain 
his  aforesaid  action  against  him. 

But  as  these  expressions  were,  from  the  great  comparative 
frequency  of  pleas  in  bar,  of  almost  continual  occurrence,  it  was 
thought  desirable,  for  the  sake  of  brevity,  to  abandon  altogether 
the  use  of  formuhe  which  led  to  so  much  reiteration ;  and  by  the 
rule  of  court  just  mentioned,  it  was  accordingly  provided  that  in 
future  it  should  not  be  necessary,  where  the  plea  is  pleaded  in 
bar  of  the  whole  action  generally,  to  use  any  allegation  of  actio- 
nem  non,  or  any  prayer  of  judgment;  but  that  a  plea  pleaded 
without  such  formal  parts  shall  nevertheless  be  taken  as  pleaded 
in  bor  of  the  action.15 

A  REPLICATION  TO  A  PLEA  TO  THE  JURISDICTION  has  this  com- 
mencement: 

(/)  2  Saund.  209a,  n.  1;  Arch.  305. 

(m)  Powers  v.  Cook,  Ld.  Raym.  63;  2  Saund.  209a,  n.  1;  Com. 
Dig.,  Abatement  (I.  12);  2  Chitty,  414. 

(n)  Co.  Litt.  128a;  Com.  Dig.,  Abatement  (I.  12);  1  Went.  58,  62. 


15.  In  Virginia  the  formal  commencement  of  pleas,  the  actionem 
non,  precludi  non,  and  prayer  for  judgment  in  pleas  in  bar  have 
been  abolished  by  statute.  Code,  §§  3269,  3265. 


§    500     PLEADINGS   SHOULD    HAVE  FORMAL   COMMENCEMENTS      979 

— says,  that  notwithstanding  anything  by  the  said  defendant  above 
alleged,  the  court  of  our  lord  the  king  here  ought  not  to  be  pre- 
cluded from  having  further  cognizance  of  the  plea  aforesaid,  be- 
cause he  says,  etc.(o) 

or  this — 

— says  that  the  said  defendant  ought  to  answer  to  the  said  plea 
here  in  court  because  he  says,  etc.(/>) 

and  this  conclusion: 

— wherefore  he  prays  judgment,  and  that  the  court  here  may  take 
cognizance  of  the  plea  aforesaid,  and  that  the  said  defendant  may 
answer  over,  etc. (q) 

A  REPLICATION  TO  A  PLEA  IN  SUSPENSION  should  probably  have 
this  commencement: 

— says  that  notwithstanding  anything  by  the  said  defendant  above 
alleged,  the  suit  ought  not  to  stay  or  be  respited  because,  he  says, 
etc.(r) 

And  this  conclusion: 

— wherefore  he  prays  judgment  if  the  suit  ought  to  stay  or  be  re- 
spited, and  that  the  said  defendant  may  answer  over. 

A  REPLICATION  TO  A  PLEA  IN  ABATEMENT  has  this  commence- 
ment: 
where  the  plea  was  founded  on  objection  to  the  declaration, — 

— says,  that  his  said  declaration  by  reason  of  anything  in  the  said 
plea  alleged,  ought  not  to  be  quashed;  because  he  says,  etc.(-y) 

where  the  plea  was  founded  on  the  disability  of  the  party, — 

— says,  that  notwithstanding  anything  in  the  said  plea  alleged,  he 
the  said  plaintiff  ought  to  be  answered  to  his  said  declaration ;  be- 
cause he  says,  etc.(f) 

The  conclusion  in  most  cases  is  thus : 
in  the  former  kind  of  plea, — 
— wherefore   he   prays  judgment,  and   that  the    said  declaration 

(0)  1    Went.    60;    Lib.    Plac.   348. 

(/>)  1  Went.  39. 

(q)  Lib.    Plac.   348;   1   Went.   39. 

(r)  Liber.   Intrat. 

(s)  1  Arch.   309;   Rast.    Ent.   126a;    Sabine   v.  Johnstone,   1    Bos.    & 
Pul.  60. 

(0  1  Went.  42;  1  Arch.  309. 


980  RULES  TO  PREVENT  OBSCURITY  §    500 

may  be  adjudged  good,  and  that  the  said  defendant  may  answer 
over,  etc. 

in  the  latter, — 

—wherefore  he  prays  judgment,  and  that  the  said  defendant  may 
answer  over,  etc.(w) 

A  REPLICATION  TO  A  PLEA  IN  BAR,  before  the  Rule  Hil.  4  W.  4, 
of  court  above  mentioned,  had  this  commencement: 

— says,   that  by  reason  of  anything  in  the   said  plea  alleged   he 
ought  not  to  be  barred  from  having  and  maintaining  his  aforesaid 
action  against  him  the  said  defendant,  because  he  says,  etc. 
This  formula  is  commonly  called  precludi  non. 

The  conclusion  was  thus: 
in  Debt— 

—wherefore  he  prays  judgment,  and  his  debt  aforesaid,  together 
with  his  damages  by  him  sustained,  by  reason  of  the  detention 
thereof,  to  be  adjudged  to  him. 

in  Covenant, — 

— wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  said  breach  of  covenant,  to  be  adjudged 
to  him. 

in  Trespass, — 

— wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  committing  of  the  said  trespasses,  to  be 
adjudged  to  him. 

in  Trespass  on  the  case ;  in  Assumpsit. 

— wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  not  performing  of  the  said  several  prom- 
ises and  undertakings,  to  be  adjudged  to  him. 

in  Trespass  on  the  case,— in  general, — 

— wherefore  he  prays  judgment,  and  his  damages  by  him  sus- 
tained, by  reason  of  the  committing  of  the  said  several  griev- 
ances, to  be  adjudged  to  him. 

(«)  1  Went.  43,  45,  54;  1  Arch.  309;  Rast.  Ent.  126a;  Bisse  v.  Har- 
court,  3  Mod.  281;  1  Salk.  177;  1  Show.  155;  Carth.  137,  s.  c.  As  to 
the  cases  in  which  the  conclusion  should  be  different,  see  2  Saund. 
211,  note  3;  Medina  v.  Stoughton,  Lord  Ray.  594;  Co.  Ent.  160a  Lil. 
Ent.  123,  Lib.  Plac.  1. 


§    501  VARIATIONS    IN    FORMS  981 

And  in  all  other  actions  the  replication,  in  like  manner,  con- 
cluded with  a  prayer  of  judgment  for  damages,  or  other  appro- 
priate redress,  according  to  the  nature  of  the  action,  (v) 

But  the  rule  of  Hil.  4  W.  4,  provides  that  no  allegation  of 
actionem  non,  or  precludi  non,  or  prayer  of  judgment,  shall  in 
future  be  necessary  in  any  pleading  subsequent  upon  a  plea 
pleaded  in  bar  of  the  whole  action  generally;  but  that  every  rep- 
lication or  subsequent  pleading,  pleaded,  without  these  formulae, 
shall  nevertheless  be  taken  as  in  bar  or  maintenance  respectively 
of  the  action.16 

With  respect  to  PLEADINGS  SUBSEQUENT  TO  THE  REPLICATION, 
it  will  be  sufficient  to  observe  in  general,  that  those  on  the  part 
of  the  defendant  commence  and  conclude  like  the  plea;  those  on 
the  part  of  the  plaintiff,  like  the  replication. 

§   501.    Variations  in  forms. 

The  forms  of  commencement  and  conclusion  given  above,  are 
subject  to  the  following  variations: 

First,  with  respect  to  pleas  in  abatement.  Matters  of  abate- 
ment, in  general,  only  render  the  action  abateable  upon  plea; 
but  there  are  others,  such  as  the  death  of  the  plaintiff  or  defend- 
ant before  verdict  or  judgment  by  default  that  are  said  to  abate 
it  de  facto;  that  is,  by  their  own  immediate  effect,  and  before 
plea,  the  only  use  of  the  plea  in  such  cases  being  to  give  the 
court  notice  of  the  fact.(w)  Where  the  action  is  merely  abate- 
able, the  forms  of  conclusion  above  given  are  to  be  observed; 
but  when  abated  de  facto,  the  conclusion  must  pray,  "whether 
the  court  will  further  proceed;"  for  the  declaration  being  al- 
ready and  ipso  facto  abated,  it  would  be  improper  to  pray  that 
it  "may  be  quashed."  (x) 

Again,  when  a  plea  in  bar  is  pleaded  puts  darreign  continu- 

(v)   See  the  forms,  2  Chitty,  615,  628,  630,  641;  1  Arch.  410,  442. 

(w)  Bac.  Ab..  Abatement  (K.),  (G.),  (F.);  Com.  Dig.,  Abatement 
(E.  17);  2  Saund.  210,  n.  1. 

O)  Com.  Dig.,  Abatement  (H.  33).  (I.  12);  2  Saund.  210,  n.  1; 
Hallowes  r.  Lucy,  3  Lev.  120. 


16.  Corresponding  statute  in  Va.  Code,  §  3265. 


982  RULES  TO  PREVENT  OBSCURITY  §  501 

ance,  it  has,  instead  of  the  ordinary  actionem  non,  a  commence- 
ment and  conclusion  of  actionem  non  ulterious. 

So,  if  a  plea  in  bar  be  found  on  any  matter  arising  after  the 
commencement  of  the  action,  though  it  be  not  pleaded  after  a 
previous  plea,  it  has  the  same  commencement  and  conclusion  of 
actio  non  ulterius,  and  actionem  non  generally,  would  be  im- 
proper; for  that  formula  is  taken  to  refer  in  point,  of  time  to 
the  commencement  of  the  suit,  and  not  to  the  time  of  plea 
pleaded,  (xx) 

Again,  all  pleadings  by  way  of  estoppel  have  a  commencement 
and  conclusion  peculiar  to  themselves.  A  plea  in  estoppel  has 
the  following  commencement:  "says,  that  the  said  plaintiff 
ought  not  to  be  admitted  to  say"  (stating  the  allegation  to  which 
the  estoppel  relates)  ;  and  the  following  conclusions  "wherefore 
he  prays  judgment,  if  the  said  plaintiff  ought  to  be  admitted, 
against,  his  own  acknowledgment,  by  his  deed  aforesaid"  (or 
otherwise,  according  to  the  matter  of  the  estoppel),  "to  say  that" 
(stating  the  allegation  to  which  the  estoppel  relates.)  (y)  A 
replication,  by  way  of  estoppel  to  a  plea,  either  in  abatement  or 
bar,  has  this  commencement :  "says,  that  the  said  'defendant  ought 
not  to  be  admitted  to  plead  the  said  plea  by  him  above  pleaded ; 
because  he  says,  etc.  (z)  Its  conclusion,  in  case  of  a  plea  of 
abatement,  is  as  follows :  "wherefore  he  prays  judgment  if  the 
said  defendant  ought  to  be  admitted  to  his  said  plea,  contrary  to 
his  own  acknowledgment,  etc.,  and  that  he  may  answer  over, 
etc.  :"(a) — in  case  of  a  plea  in  bar, — "wherefore  he  prays  judg- 
ment, if  the  said  defendant  ought  to  be  admitted,  contrary  to  his 
own  acknowledgment,  etc.,  to  plead,  that"  (stating  the  allega- 
tion to  which  the  estoppel  relates. )(&)  Rejoinders  and  subse- 
quent pleadings  follow  the  forms  of  pleas  and  replications  re- 
spectively, (c) 

Again,  if  any  pleading  be  intended  to  apply,  to  part  only  of 

(xx}   Evans  v.   Prosser,  3  T.  R.  186;   Selw.   Ni.   Pri.   138. 

(y)  1  Arch.  202;  Veale  v.  Warner,  1  Saund.  325. 

(2)  2  Chitty,  590.  592;  Took  v.  Glascock,  1  Saund.  257. 

(a)  2  Chitty,  590. 

(fc)   2    Chitty,    592. 

(c)  Veale  v.  Warner,  1  Saund.  325. 


§    502  IMPROPER    COMMENCEMENTS   OR   CONCLUSIONS  983 

the  matter  adversely  alleged  it  must  be  qualified  according  to  its 
commencement  and  conclusion. (d)  And  it  would  seem  from  the 
language  of  the  Rule  of  Hil.  4  W.  4,  above  cited,  that  where  the 
pleading  is  to  part  only,  even  pleas  in  bar,  and  other  pleadings 
consequent  upon  them,  should  still  retain,  notwithstanding  that 
rule,  their  ancient  forms  of  commencement  and  conclusion. 
***** 

\Yhile  pleadings  have  thus,  in  general,  their  formal  commence- 
ments and  conclusions,  it  is  to  be  observed  there  is  an  exception 
to  this  rule,  in  the  case  of  all  such  pleadings  as  tender  issue. 
These,  instead  of  the  conclusion  with  a  prayer  of  judgment,  as 
in  the  above  forms,  conclude  (in  the  case  of  the  trial  by  jury) 
to  the  country;  or  (if  a  different  mode  of  trial  be  proposed) 
with  other  appropriate  formulae,  as  explained  under  the  second 
rule  of  the  first  section.  Pleadings  which  tender  issue  have, 
however,  the  formal  commencements;  unless  they  are  pleaded 
in  bar  or  maintenance  of  the  whole  action  generally ;  for  in  that 
case  the  rule  of  court  dispenses  with  these  formulae  altogether. 

§   502.    Improper   commencements  or  conclusions. 

In  general  a  defect  or  impropriety  in  the  commencement  and 
conclusion  of  a  pleading  is  ground  for  demurrer. (e)  But  if  the 
commencement  pray  the  proper  judgment,  it  seems  to  be  suffi- 
cient, though  judgment  be  prayed  in  an  improper  form  in  the 
conclusion.  (/)  And  the  converse  case,  as  to  a  right  of  prayer 
in  the  conclusion  with  an  improper  commencement,  has  been 
decided  the  same  way.(^r)  So,  if  judgment  be  simply  prayed, 
without  specifying  ivhat  judgment,  it  is  said  to  be  sufficient ;  and 
it  is  laid  down  that  the  court  will,  in  that  case,  ex  offkio,  award 

(rf)  Weeks  v.  Reach,  1  Salk.  179. 

(e)  Nowlan  r.  Geddes,  1  East,  634;  Wilson  v.  Kemp,  2  M.  &  S. 
549;  Le  Bret  v.  Papillion,  4  East,  502;  Com.  Dig.,  Pleader  (E.  27); 
Weeks  r.  Reach,  1  Salk.  179;  Powell  v.  Fullerton,  2  Bos.  &  Pul.  420. 
But  in  some  cases  a  bad  conclusion  makes  the  plea  a  mere  nullity, 
and  operates  as  a  discontinuance.  Bisse  v.  Harcourt,  3  Mod.  281; 
1  Salk.  177;  1  Show.  155;  Garth.  137,  S.  C.;  Weeks  v.  Peach,  1  Salk. 
179. 

(/)  Street  v.   Hopkinson,   Rep.   Temp.   Hard.   345. 

(g)  Tolbert  v.   Hopewood,  Fort.  335. 


984  RULES  TO  PREVENT  OBSCURITY  §    502 

the  proper  legal  consequence,  (/t)  It  seems,  however,  that  these 
relaxations  from  the  rule  do  not  apply  to  pleas  in  abatement, 
the  court  requiring  greater  strictness  in  these  pleas,  with  a  view 
to  discouraging  their  use.(t)17 

It  will  be  observed,  that  the  commencement  and  conclusion  of 
a  plea  are  in  such  form  as  to  indicate  the  view  in  which  it  is 
pleaded,  and  to  mark  its  object  and  tendency,  as  being  either  to 
the  jurisdiction,  in  suspension,  in  abatement,  or  in  bar.  It  is. 
therefore,  held,  that  the  class  and  character  of  a  plea  depend 
upon  these  its  formular  parts;  which  is  ordinarily  expressed 
by  the  maxim  conclusio  facit  placitum.(j)  Accordingly,  if  it 
commence  and  conclude  as  in  bar,  but  contain  matter  sufficient 
only  to  abate  the  suit,  it  is  a  bad  plea  in  bar,  and  no  plea  in  abate- 
ment.^) 

[Thus,  in  an  action  on  three  promissory  notes,  where  the  de- 
fendant filed  a  plea  having  a  formal  commencement  and  conclu- 
sion of  a  plea  in  bar,  but  set  up  only  matter  in  abatement,  to-wit, 
that  the  debt  evidenced  by  the  said  writing  was  not  due,  it  was 
held  bad  as  a  plea  in  bar,  as  the  commencement  and  conclusion 
of  a  plea,  and  not  its  subject  matter,  determines  its  character.]18 

And  on  the  other  hand,  it  has  been  held,  that  if  a  plea  com- 
mence and  conclude  as  in  abatement,  and  show  matter  in  bar,  it 
is  a  plea  in  abatement,  and  not  in  bar.(/) 

As  the  commencement  and  conclusion  have  this  effect,  of  de- 
fining the  character  of  the  plea,  so  they  have  the  same  tendency 
in  the  replication  and  subsequent  pleadings.  For  example,  they 

(/i)  1  Chitty,  446,  539;  Le  Bret  v.  Papillion,  4  East,  502;  1  Saund. 
97,  n.  1. 

(t)  King  v.  Shakespeare,  10  East,  83;  Attwood  v.  Davis,  1  Barn. 
&  Aid.  172. 

(/)  Street  v.  Hopkinson,  Rep.  Temp.  Hard.  346;  Medina  v.  Stough- 
ton,  1  L.  Ray.  593;  Talbot  v.  Hopewood,  Fort.  335. 

(fe)  1  East,  634;  Wallis  v.  Savil,  1  Lutw.  41;  2  Saund.  209d,  n.  1. 
Per  Littleton,  ].,  36  Hen.  6,  18. 

(/)  Medina  v.  StoUghton,  1  Ld.  Ray.  593;  Godson  v.  Good,  6  Taunt. 
587. 


17.  Guarantee  Co.  v.  First  National  Bank,  95  Va.  480,  28  S.  E.  909. 

18.  Pitts    Sons    Mfg.    Co.   v.    Commercial    Nat.    Bank,    121    111.    528, 
13    N.    E.    156. 


§  503     A  PLEADING  BAD  IN  PART  IS  BAD  ALTOGETHER       985 

serve  to  show  whether  the  pleading  be  intended  as  in  confession 
and  avoidance,  or  estoppel ;  and  whether  intended  to  be  pleaded  to 
the  whole,  or  to  part.  From  these  considerations,  it  is  apparent 
that  they  are  forms,  which,  on  the  whole,  materially  tend  to  clear- 
ness and  precision  in  pleading;  and  they  have,  for  that  reason, 
been  considered  under  this  section. 


RULE  IX. 

§  503.    A   pleading   which   is   bad   in   part    is    bad    al- 
together, (m) 

The  meaning  of  this  rule  is  that  if  in  any  material  part  of  a 
pleading,  or  in  reference  to  any  of  the  material  things  which  it 
undertakes  to  answer,  or  to  either  of  the  parties  answering,  the 
pleading  be  bad,  though  in  other  respects  to  be  free  from  objec- 
tion, the  whole  of  it  is  open  to  demurrer;  so  that,  if  the  objec- 
tion be  good,  the  whole  pleading  in  question  is  overruled  and 
judgment  given  accordingly.  Thus,  if  in  a  declaration  in  as- 
sumpsit,  two  different  promises  be  alleged  in  two  different  counts, 
and  the  defendant  plead  in  bar  to  both  counts  conjointly,  the 
statute  of  limitations,  viz,  that  he  did  not  promise  within  six 
years,  and  the  plea  be  an  insufficient  answer  as  to  one  of  the 
counts,  but  a  good  bar  as  to  the  other,  the  whole  plea  is  bad,  and 
neither  promise  is  sufficiently  answered. (n)  So,  where  to  an 
action  of  trespass  for  false  imprisonment  against  two  defendants, 
they  pleaded  that  one  of  them,  A.,  having  ground  to  believe  that 
his  horse  had  been  stolen  by  the  plaintiff,  gave  him  in  charge  to 
the  other  defendant,  a  constable,  whereupon  the  constable,  and 
A.,  in  his  aid,  and  by  his  command,  laid  hands  on  the  plaintiff, 
etc.,  the  plea  was  adjudged  to  be  bad  as  to  both  the  defendants, 
because  it  showed  no  reasonable  ground  of  suspicion ;  for  A. 
could  not  justify  the  arrest  without  showing  such  ground ;  and 
though  the  case  might  be  different  as  to  the  constable,  whose 

(m)  Com.  Dig.,  Pleader  (E.  36),  (F.  25);  1  Saund.  28,  n.  2;  Webb 
v.  Martin,  1  Lev.  48;  Rowe  v.  Tutte,  Wills,  14;  Trueman  v.  Hurst, 
1  T.  R.  40;  Webber  v.  Tivill,  2  Saund.  127;  Duffield  v.  Scott,  3  T.  R. 
374. 

(n)  Webb   v.   Martin,   1    Lev.   48. 


986  RULES  TO  PREVENT  OBSCURITY  §    503 

duty  was  to  act  on  the  charge,  and  not  to  deliberate,  yet,  as  he 
had  not  pleaded  separately  but  had  joined  in  A.'s  justification, 
the  plea  was  bad  as  to  him  also. 

[So  where,  in  an  action  of  covenant,  the  declaration  alleged 
that  the  defendants,  their  successors  or  assigns,  did  build  and 
operate  a  certain  railroad  in  the  declaration  mentioned,  the  plea 
simply  denied  that  the  defendants  built  and  operated  the  road, 
but  said  nothing  as  to  their  successors  or  assigns,  although  it 
professed  to  answer  the  whole  of  the  matter  in  the  declaration 
alleged,  it  was  held  bad,  because  being  bad  in  part,  it  was  bad 
altogether.19  So  where,  in  an  action  of  detinue  to  recover  ten 
slaves,  the  defendant's  plea  professed  to  answer  as  to  Ann  and 
four  other  slaves,  but  was  defective  as  to  the  four  other  slaves, 
the  plea  was  held  defective  altogether  under  the  rule  of  plead- 
ing above  stated.]20 

This  rule  seems  to  result  from  that  which  requires  each  plead- 
ing to  have  its  proper  formal  commencement  and  conclusion. 
For  by  those  forms  (it  will  be  observed)  the  matter  which  any 
pleading  contains  is  offered  as  an  entire  answer  to  the  whole  of 
that  which  last  preceded.  Thus,  in  the  first  example  above  given, 
the  defendant  would,  prior  to  the  rule  of  court  dispensing  with 
the  actionem  non,  etc.,  have  alleged,  in  the  commencement  of  his 
plea,  that  the  plaintiff  "ought  not  to  have  or  maintain  his  action," 
for  the  reason  therein  assigned :  and  therefore  he  would  pray 
judgment,  etc.,  as  to  the  whole  action,  in  the  conclusion.  If, 
therefore,  the  answer  be  insufficient  as  to  one  count,  it  cannot 
avail  as  to  the  other;  because,  if  taken  as  a  plea  to  the  latter 
only,  the  commencement  and  conclusion  would  be  wrong.  It  is 
to  be  observed  that  there  was  but  one  plea,  and  consequently 
there  would  have  been  but  one  commencement  and  conclusion; 
but  if  the  defendant  had  pleaded  the  statute,  in  bar  to  the  first 
count  separately,  and  then  pleaded  it  to  the  second  count,  with  a 
new  commencement  and  conclusion,  thus  making  two  pleas  in- 
stead of  one,  the  invalidity  of  one  of  these  pleas  could  not  have 
vitiated  the  other. 

As  the  declaration  contains  no  commencement  or  conclusion 

19.  Merriman  v.  Cover,  104  Va.  428,  51  S.  E.  817. 

20.  Wittick  v.  Traun,  27  Ala.  562,  62  Am.  Dec.  778. 


§    503  A  PLEADING  BAD  IN  PART  IS  BAD  ALTOGETHER  987 

of  the  kind  to  which  the  last  rule  relates,  so,  on  the  other  hand, 
the  declaration  does  not  fall  within  the  rule  now  in  question. 
Therefore,  if  a  declaration  be  good  in  part,  though  bad  as  to  an- 
other part,  relating  to  a  distinct  demand  divisible  from  the  rest, 
and  the  defendant  demur  to  the  whole,  instead  of  confining  his 
demurrer  to  the  faulty  part  only,  the  court  will  give  judgment 
for  the  plaintiff.  (0)  It  is  also  to  be  observed  that  the  rule  ap- 
plies only  to  material  allegations;  for  where  the  objectionable 
matter  is  mere  surplusage,  and  unnecessarily  introduced  (the 
answer  being  complete  without  it),  its  introduction  does  not  vi- 
tiate the  rest  of  the  pleading. 

(o)  1  Saund.  286,  note  9;  Bac.  Ab.,  Pleas,  etc..  (B.)  6;  Cutforthay 
v.  Taylor,  Raym.  395;  Judin  v.  Samuel,  1  New  Rep.  43;  Bainbridge 
v.  Day,  1  Salk.  218;  Powdick  v.  Lyon,  11  East,  565. 


CHAPTER  LIV. 

RULES  WHICH  TEND  TO  PREVENT  PROLIXITY  AND  DELAY  IN 

PLEADING. 

RULE    I. 

§  504.  There  must  be  no  departure  in  pleading. 

RULE    II. 

§  505.  Where  a  plea  amounts  to  the  general  issue,  it  should  be  so  pleaded. 

RULE    III. 

§  506.  Surplusage  is  to  be  avoided. 

RULE  I. 
§   504.    There  must  be  no  departure  in  pleading,  (a)1 

A  departure  takes  place  when,  in  any  pleading,  the  party  de- 
serts the  ground  that  he  took  in  his  last  antecedent  pleading,  and 
resorts  to  another. (b) 

A  departure  obviously  can  never  take  place  till  the  replication.2 
Of  departure  in  the  replication,  the  following  is  an  example. 
In  assumpsit,  the  plaintiffs,  as  executors,  declared  on  several 
promises  alleged  to  have  been  made  to  the  testator,  in  his  life- 
time. The  defendant  pleaded  that  she  did  not  promise  within 
six  years,  before  the  obtaining  of  the  original  writ  of  the  plain- 
tiffs. The  plaintiffs  replied  that  within  six  years  before  the  ob- 
taining of  the  original  writ,  the  letters  testamentary  were  granted 
to  them;  whereby  the  action  accrued  to  them  the  said  plaintiffs 
within  six  years.  The  court  held  this  to  be  a  departure;  as  in 

(a)  Co.  Litt.  304a;  2  Saund.  84;  Dudlow  v.  Watchorn,  16  East,  39; 
Tolputt  v.  Wells,  1  M.  &  S.  395. 

(&)   Co.  Litt.  304a;  2  Saund.  84,  n.  1. 


1.  See,  Graham  &  Scott  v.  Graham  &  Lane,  4  Munf.  205;  Va.  F.  & 
M.  Ins.  Co.  v.  Saunders,  86  Va.  969,  11  S.  E.  794;  New  River  Min.  Co. 
v.  Painter,  100  Va.  507,  42  S.  E.  300;  Union  Pac.  R.  Co.  v.  Wyler,  158 
U.  S.  285. 

2.  A  plaintiff  may,  however,  by  amendment  of  his  declaration  desert 
the    ground    set   up    in    his    original    declaration,    and    this    is    usually 
termed  a  departure. 


§  504        THERE  MUST  BE  NO  DEPARTURE  IN  PLEADING  989 

the  declaration  they  had  laid  promises  to  the  testator,  but  in  the 
replication,  alleged  the  right  of  action  to  accrue  to  themselves  as 
executors. (c)  They  ought  to  have  laid  promises  to  themselves 
as  executors,  in  the  declaration,  if  they  meant  to  put  their  action 
on  this  ground. 

But  a  departure  does  not  occur  so  frequently  in  the  replication 
as  in  the  rejoinder. 

In  debt  on  a  bond  conditioned  to  perform  an  award,  so  that 
the  same  were  delivered  to  the  defendant  by  a  certain  time,  the 
defendant  pleaded  that  the  arbitrators  did  not  make  any  award. 
The  plaintiff  replied,  that  the  arbitrators  did  make  an  award  to 
such  an  effect ;  and  that  the  same  was  tendered  by  the  proper 
time.  The  defendant  rejoined  that  the  award  was  not  so  ten- 
dered. On  demurrer,  it  was  objected  that  the  rejoinder  was  a 
departure  from  the  plea  in  bar;  "for,  in  the  plea  in  bar,  the 
defendant  says  that  the  arbitrators  made  no  award ;  and  now, 
in  his  rejoinder,  he  has  impliedly  confessed  that  the  arbitrators 
have  made  an  award,  but  says  that  it  was  not  tendered  accord- 
ing to  the  condition,  which  is  a  plain  departure;  for  it  is  one 
thing  not  to  make  an  award,  and  another  thing  not  to  tender  it 
when  made.  And,  although  both  these  things  are  necessary,  by 
the  condition  of  the  bond,  to  bind  the  defendant  to  perform  the 
award,  yet  the  defendant  ought  only  to  rely  upon  one  or  the  other 
by  itself,"  etc. — "but,  if  the  truth  had  been  that,  although  the 
award  was  made,  yet  it  was  not  tendered  according  to  the  condi- 
tion, the  defendant  should  have  pleaded  so  at  first,  in  his  plea," 
etc.  And  the  court  gave  judgment  accordingly. (d)  So,  in  debt 
on  a  bond  conditioned  to  keep  the  plaintiffs  harmless  and  indem- 
nified from  all  suits,  etc.,  of  one  Thomas  Cook,  the  defendants 
pleaded  that  they  had  kept  the  plaintiffs  harmless,  etc.(e)  The 
plaintiffs  replied  that  Cook  sued  them ;  and  so  the  defendant  had 
not  kept  them  harmless,  etc.  The  defendants  rejoined,  that  they 
had  not  any  notice  of  the  damnification.  And  the  court  held,  first, 

(c)   Hickman  v.   Walker,   Willes,   27. 

(<f)   Roberts  v.  Mariett,-  2  Saund.   188. 

(e)  This  plea  was  bad  for  not  showing  how  they  had  kept  harm- 
less (1  Saund.  117,  n.  1),  but  the  court  held  the  fault  cured  by  plead- 
ing over. 


990  PROLIXITY   AND  DELAY  §    504 

that  the  matter  of  the  rejoinder  was  bad,  as  the  plaintiffs  were 
not  bound  to  give  notice;  and,  secondly,  that  the  rejoinder  was 
a  departure  from  the  plea  in  bar :  for,  in  the  bar,  the  defendants 
plead  that,  "they  have  saved  harmless  the  plaintiffs,"  and  in  the 
rejoinder,  confess  that  they  have  not  saved  harmless,  but  allege 
that  they  had  not  notice  of  the  damnification;  which  "is  a  plain 
departure."  (/)  So,  in  debt  on  a  bond  conditioned  to  perform  the 
covenants  in  an  indenture  of  lease,  one  of  which  was,  that  the 
lessee,  at  every  felling  of  wood,  would  make  a  fence, — the  de- 
fendant pleaded  that  they  had  not  felled  any  wood,  etc.  The 
plaintiff  replied  that  he  had  felled  two  acres  of  wood,  but  made 
no  fence.  The  defendant  rejoined  that  he  did  make  a  fence;  this 
was  adjudged  a  departure. (g) 

These,  it  will  be  observed,  are  cases  in  which  the  party  deserts 
the  ground,  in  point  of  fact,  that  he  had  first  taken.  But  it  is 
also  a  departure,  if  he  puts  the  same  facts  on  a  new  ground  in 
point  of  law;  as  if  he  relies  on  the  effect  of  the  common  law, 
in  his  declarations,  and  on  a  custom  in  his  replication ;  or  on  the 
effect  of  the  common  law  in  his  plea,  and  a  statute  in  his  re- 
joinder. Thus,  where  the  plaintiff  declared  in  covenant  on  an 
indenture  of  apprenticeship,  by  which  the  defendant  was  to  serve 
him  for  seven  years,  and  assigned  as  a  breach  of  covenant,  that 
the  defendant  departed  within  the  seven  years, — and  the  de- 
fendant pleaded  infancy, — to  which  the  plaintiff  replied  that,  by 
the  custom  of  London,  infants  may  bind  themselves  apprentices, 
this  was  considered  as  a  departure. (h) 

***** 

To  show  more  distinctly  the  nature  of-a  departure,  it  may  be 
useful  on  the  other  hand  to  give  some  examples'  of  cases  that 
have  been  held  not  to  fall  within  that  objection. 

In  debt  on  a  bond  conditioned  to  perform  covenants,  one  of 
which  was,  that  the  defendant  should  account  for  all  sums  of 
money  that  he  should  receive,  the  defendant  pleaded  perform- 
ance. The  plaintiff  replied,  that  261.  came  to  his  hands  for  which 
he  had  not  accounted.  The  defendant  rejoined,  that  he  accounted 

(/)  Cutler  v.  Southern,  1  Saund.  116. 

(g)   Dyer,  253b. 

(h)  Mole  v.  Wallis,  1  Lev.  81. 


§    504  THERE   MUST   BE   NO  DEPARTURE  IN    PLEADING  991 

modo  sequent e,  viz,  that  certain  malefactors  broke  into  his  count- 
ing-house and  stole  it,  wherewith  he  acquainted  the  plaintiff. 
And  it  was  argued  on  demurrer,  "that  the  rejoinder  is  a  de- 
parture; for  fulfilling  a  covenant  to  account,  cannot  be  intended 
but  by  actual  accounting;  whereas  the  rejoinder  does  not  show 
an  account,  but  an  excuse  for  not  accounting."  But  the  court 
held,  that  showing  he  was  robbed,  is  giving  an  account;  and 
therefore  there  was  no  departure,  (t) 

***** 

Again,  in  action  of  debt  on  a  bond  conditioned  for  the  per- 
formance of  an  award,  the  defendant  pleaded  that  the  arbitrators 
did  not  make  any  award:  the  plaintiff  replied  that  they  duly  made 
their  award,  setting  part  of  it  forth ;  and  the  defendant  in  his  re- 
joinder, set  forth  the  whole  award  verbatim,  by  which  it  ap- 
peared that  the  award  was  bad  in  law,  being  made  as  to  matters 
not  within  the  submission.  To  this  rejoinder  the  plaintiff  de- 
murred, on  the  ground  that  it  was  a  departure  from  the  plea, — 
for  by  the  plea  it  had  been  alleged  that  there  was  no  award, 
which  meant  no  award  in  fact;  but  by  the  rejoinder  it  appeared 
that  there  had  been  an  award  in  fact.  The  court,  however,  held 
that  there  was  no  departure ;  that  the  plea  of  no  award,  meant 
no  legal  and  valid  award  according  to  the  submission ;  and  that 
consequently  the  rejoinder,  in  setting  the  award  forth,  and  show 
ing  that  it  was  not  conformable  to  the  submission,  maintained 
the  plea.  So  in  all  cases  where  the  variance  between  the  former 
and  the  latter  pleading  is  on  a  point  not  material,  there  is  no  de- 
parture. Thus,  in  assumpsit,  if  the  declaration,  in  a  case  where 
the  time  is  not  material,  state  a  promise  to  have  been  made  on  a 
given  day,  ten  years  ago,  and  the  defendant  plead  that  he  did 
not  promise  within  six  years,  the  plaintiff  may  reply,  that  the  de- 
fendant did  promise  within  six  years  without  a  departure,  (/)  be- 
cause the  time  laid  in  the  declaration  was  immaterial. 

The  rule  against  departure  is  evidently  necessary  to  prevent 
the  retardation  of  the  issue.  For  while  the  parties  are  respectively 
confined  to  the  grounds  they  have  first  taken  in  their  declaration 
and  plea,  the  process  of  pleading  will,  as  formerly  demonstrated, 

(i)  Vere  v.  Smith,  2  Lev.  5;   1  Vent.  121   S.  C. 
(;)   Lee  v.   Rogers,  1  Lev.  110. 


992  PROUXITY   AND  D^AY  §    505 

exhaust,  after  a  few  alternations  of  statement,  the  whole  facts 
involved  in  the  cause;  and  thereby  develop  the  question  in  dis- 
pute. 'But  if  a  new  ground  be  taken  in  any  part  of  the  series,  a 
new  state  of  facts  is  introduced,  and  the  result  is  consequently 
postponed.  Besides,  if  one  departure  were  allowed,  the  parties 
might,  on  the  same  principle,  shift  their  ground  as  often  as  they 
pleased;  and  an  almost  indefinite  length  of  altercation  might  in 
some  cases  be  the  consequence. (&) 

RULE;  II. 

§  505.    Where  a  plea  amounts  to  the  general  issue,  it 
should  be  so  pleaded.  (/) 

It  has  been  explained,  in  a  former  part  of  the  work,  that  in 
most  actions  there  is  an  appropriate  form  of  plea,  called  the 
general  issue, — fixed  by  ancient  usage  as  the  proper  method  of 
traversing  the  declaration  when  the  pleader  means  to  deny  the 
whole  or  the  principal  part  of  its  allegations.  The  meaning  of 
the  present  rule  is  that,  if  instead  of  traversing  the  declaration  in 
this  form,  the  party  pleads  in  a  more  special  way,  matter  which 
is  constructively  and  in  effect  the  same  as  the  general  issue,  such 
plea  will  be  bad ;  and  the  general  issue  ought  to  be  substituted. 

Thus,  to  a  declaration  in  trespass  for  entering  the  plaintiff's 
garden,  the  defendant  pleaded  that  the  plaintiff  had  no  such 
garden.  This  was  ruled  to  be  "no  plea;  for  it  amounts  to  nothing 
more  than  not  guilty;  for  if  he  had  no  such  garden  then  the  de- 
fendant is  not  guilty."  So  the  defendant  withdrew  his  plea,  and 
said  not  guilty. (m)  So  in  trespass  for  depasturing  the  plaintiff's 
herbage,  non  depascit  herbas,  is  no  plea;  it  should  be  not 
guilty. (n}  So  in  debt  for  the  price  of  a  horse  sold,  that  the  de- 

(k)  2  Saund.  84a,  n.  1. 

(/)  Co.  Litt.  303b;  Doct.  &  Stud.  271,  272;  Com.  Dig.,  Pleader  (E. 
14);  Bac.  Ab.,  Pleas,  etc.,  pp.  370-376,  5th  Ed.;  10  Hen.  6,  16;  22  Hen. 
6,  37;  Holler  v.  Bush,  Salk,  394;  Birch  v.  Wilson,  2  Mod.  277;  Lynnet 
v.  Wood,  Cro.  Car.  157;  Warner  v.  Wainsford,  Hob.  127;  12  Mod. 
537;  Saunder's  Case,  id.  513,  514. 

(m)  10   Hen.   6,   16. 

(n)   Doct.    PI.   42,   cites  22   Hen.   6,  37. 


§    505  PLEADING  GENERAL  ISSUE  993 

fendant  did  not  buy,  is  no  plea,  for  it  amounts  to  never  in- 
debted.^} Again,  in  debt  of  a  bond,  the  defendant  by  his  plea 
confessed  the  bond,  but  said  that  it  was  executed  to  another  per- 
son than  the  plaintiff;  this  was  bad,  as  amounting  to  non  est  fac- 
tum.(p) 

[Again,  where  a  defendant  was  sued  in  assumpsit  upon  a  con- 
tract, and  pleaded  the  general  issue,  and  then  offered  a  special 
plea  that  the  contract  sued  on  was  illegal  because  in  contraven- 
tion of  the  Interstate  Commerce  Act,  it  was  held  that  the  special 
plea  was  properly  rejected  as  amounting  to  the  general  issue, 
and  that  everything  sought  to  be  set  up  by  it  could  be  shown 
under  the  general  issue.]3 

These  examples  show  that  a  special  plea  thus  improperly  sub- 
stituted for  the  general  issue,  may  be  sometimes  in  a  negative, 
sometimes  in  an  affirmative  form.  When  in  the  negative,  its 
argumentativeness  will  often  serve  as  an  additional  test  of  its 
faulty  quality.  Thus  the  plea  in  the  first  example,  "that  the 
plaintiff  had  no  such  garden,"  is  evidently  but  an  argumentative 
allegation,  that  the  defendant  did  not  commit  because  he  could 
not  have  committed  the  trespass.  This,  however,  does  not  uni- 
versally hold ;  for  in  the  second  and  third  examples,  the  allega- 
tions that  the  defendant  "did  not  depasture,"  and  "did  not  buy," 
seem  to  be  in  as  direct  a  form  of  denial  as  that  of  not  guilty.  If 
the  plea  be  in  the  affirmative,  the  following  considerations  will 
always  tend  to  detect  the  improper  construction.  If  a  good  plea, 
it  must  (as  formerly  shown)  be  taken  either  as  a  traverse  or  as 
in  confession  and  avoidance.  Now,  taken  as  a  traverse,  such 
a  plea  is  clearly  open  to  the  objection  of  argumentativeness;  for 
two  affirmatives  make  an  argumentative  issue.  Thus  if  in  action 
on  a  bond  the  defendant  plead,  that  it  was  executed  to  another 
person,  J.  S.,  it  is  an  argumentative  denial  that  it  was  executed 

(o)  Vin.  Ab.,  Certainty  in  Pleadings  (E.  15),  cites  Bro.  Traverse, 
etc.,  pi.  275,  22  Edw.  4,  29. 

(/>)   Gifford  v.  Perkins,  1  Sid.  450;  1  Vent.  77,  s.  c. 


3.  Southern  R.  Co.  v.  Wilcox,  99  Va.  394,  39  S.  E.  144.     See,  also. 
B.  &  O.  Ry.  Co.  v.  Polly  Woods  &  Co..  14  Gratt.  447.     For  discus- 
sion of  when  a  plea  amounts  to  the  general  issue,  see  ante,  §  197. 
—63 


994  PROLIXITY  AND  DELAY  §    505 

to  the  plaintiff,  and  the  denial  should  have  been  in  the  direct 
form,  non  est  factum.  On  the  other  hand,  if  a  plea  of  this  kind 
be  intended  by  way  of  confession  and  avoidance,  it  is  bad  for 
want  of  color:  for  it  admits  no  apparent  right  in  the  plaintiff. 

It  is  said  that  the  court  is  not  bound  to  allow  this  objection; 
but  that  it  is  in  its  discretion  to  allow  a  special  plea  amounting 
to  the  general  issue,  if  it  involve  such  matter  of  law  as  might  be 
unfit  for  the  decision  of  a  jury. (q)  It  is  also  said  that  as  the 
court  has  such  discretion,  the  proper  method  of  taking  advantage 
o^f  this  fault  is  not  by  demurrer  but  by  motion  of  the  court,  to 
set  aside  the  plea,  and  enter  the  general  issue  instead  of  it.(r) 
It  appears  from  the  books,  however,  that  the  objection  has  fre- 
quently been  allowed  on  demurrer. 

As  a  plea  amounting  to  the  general  issue  is  usually  open  also 
to  the  objection  of  being  argumentative  or  that  of  wanting  color, 
we  sometimes  find  the  rule  in  question  discussed  as  if  it  were 
founded  entirely  in  a  view  to  those  objections.  This,  however, 
does  not  seem  to  be  a  sufficiently  wide  foundation  for  the  rule : — 
for  there  are  instances  of  pleas  which  are  faulty  as  amounting  to 
the  general  issue,  which  yet  do  not  (as  'already  observed),  seem 
fairly  open  to  the  objection  of  argumentativeness — and  which, 
on  the  other  hand,  being  of 'the  negative  kind  or  by  way  of  trav- 
erse,— require  no  color.  Besides,  there  is  express  authority 
for  holding,  that  the  true  object  of  this  rule  is,  to  avoid  prolixity; 
— and  that  it  is  therefore  properly  classed  under  the  present  sec- 
tion. For  it  is  laid  down  that  the  reason  of  "pressing  a  general 
issue  is  not  for  insufficiency  of  the  plea,  but  not  to  make  long 
records  when  there  is  no  cause."  (s) 

[A  plea  amounts  to  the  general  issue  when  it  denies  or  affirms 
some  matter  which  the  plaintiff  is  obliged  to  prove  in  order  to 
maintain  his  case  if  the  general  issue  were  pleaded.] 

(<j)  Bac.  Ab.,  Pleas,  etc.,  p.  374,  5th  Ed.;  Birch  v.  Wilson,  2  Mod. 
274;  Carr  v.  Hinchliff,  4  Barn.  &  Cres.  547. 

(r)  Warner  v.  Wainsford,  Hob.  127;  Ward  v.  Blunt's  Case,  1 
Leon,  178. 

(s~)  Warner  v.  Wainsford,  Hob.  127.  See  also,  Com  Dig.,  Pleader 
(E.  13). 


§    506  SURPLUSAGE  IS  TO  BE  AVOIDED  995 

RULE  III. 
§   506.    Surplusage  is  to  be  avoided. (f) 

Surplusage  is  here  taken  in  its  large  sense,  as  including  un- 
necessary matter  of  whatever  description,  (w)  To  combine  with 
the  requisite  certainty  and  precision  the  greatest  possible  brevity, 
is  now  justly  considered  as  the  perfection  of  pleading.  This 
principle,  however,  has  not  been  kept  uniformly  in  view  at  every 
era  of  the  science.  Although  it  appears  to  have  prevailed  at  the 
earliest  periods,  it  seems  to  have  been  nearly  forgotten  during  a 
subsequent  interval  of  our  legal  history ;  and  it  is  to  the  wisdom 
of  modern  judges  that  it  owes  its  revival  and  restoration. 

1.  The  rule  as  to  avoiding  surplusage  may  be  considered,  first, 
as  prescribing  the  omission  of  matter  wholly  foreign.     An  ex- 
ample of  the  violation  of  the  rule  in  this  sense,  occurs,  when  a 
plaintiff,  suing  a  defendant  upon  one  of  the  covenants  in  a  long 
deed,  sets  out  in  his  declaration  not  only  the  covenant  on  which 
he  sues,  but  all  the  other  covenants,  though  relating  to  matters 
wholly  irrelevant  to  the  cause,  (v) 

2.  The   rule    also   prescribes   the   omission   of   matter    which 
though  not  wholly  foreign,  does  not  require  to  be  stated.    Any 
matters  will  fall  within  this  description,  which  under  the  various 
rules  enumerated  in  a  former  section,  as  tending  to  limit  or  qual- 
ify the  degree  or  certainty,  it  is  unnecessary  to  allege;  for  ex- 
ample, matter  of  mere  evidence,  matter  of  law,  or  other  things 
which  the  court  officially  notices,  matter  conving  more  properly 
from  the  other  side,  matter  necessarily  implied,  etc. 

3.  The  rule  prescribes  generally  the  cultivation  of  brevity,  or 
avoidance  of  unnecessary  prolixity  in  the  manner  of  statement. 
A  terse  style  of  allegation,  involving  a  strict  retrenchment  of  un- 
necessary words,  is  the  aim  of  the  best  practitioners  in  pleading; 
and  is  considered  as  indicative  of  a  good  school. 

(0  Bristow  v.  Wright,  Doug.  667;  1  Saund.  233,  n.  2;  Yates  v. 
Carlisle,  1  Black.  270. 

(M)  In  its  strict  and  confined  meaning  it  imports  matter  wholly 
foreign  and  irrelevant. 

(v)  Dundas  v.  Lord  Weymouth,  Cowp.  665;  Price  v.  Fletcher,  id. 
727. 


996  PROLIXITY   AND   DELAY  §    506 

Surplusage,  however,  is  not  a  subject  for  demurrer;* — the 
maxim  being  that  utile  per  inutile,  non  vitiatur.  But  when  any 
flagrant  fault  of  this  kind  occurs,  and  is  brought  to  the  notice  of 
the  court,  it  is  visited  with  the  censure  of  the  judges,  (w)  They 
have  also  in  such  cases  on  motion,  referred  the  pleadings  to  their 
officer,  that  he  might  strike  out  such  matter  as  is  redundant,  and 
capable  of  being  omitted  without  injury  to  the  material  aver- 
ments: and  in  a  clear  case  will  themselves  direct  such  matter  to 
be  struck  out.  And  the  party  offending  will  sometimes  have  to 
pay  the  costs  of  the  application.  (A- ) 

This  is  not  the  only  danger  arising  from  surplusage. 

Though  traverse  cannot  be  taken  (as  elsewhere  shown)  on  an 
immaterial  allegation,  yet  it  often  happens  that  when  material 
matter  is  alleged  with  an  unnecessary  detail  of  circumstances,  the 
essential  and  non-essential  parts  of  the  statement  are  in  their 
nature  so  connected,  as  to  be  incapable  of  separation,  and  the 
opposite  party  is  therefore  entitled  to  include  under  his  traverse, 
the  whole  matter  alleged.  The  consequence  evidently  is,  that  the 
party  who  has  pleaded  with  such  unnecessary  particularity,  has 
to  sustain  an  increased  burden  of  proof,  and  incurs  greater  dan- 
ger of  failure  at  the  trial. 

Most  of  the  principal  rules  of  pleading  have  now  been  classed 
in  reference  to  certain  common  objects  which  each  class  or  set  of 
rules  is  conceived  to  contemplate ;  and  have  been  explained  and 
illustrated  in  their  connection  with  these  objects,  and  with  each 
other.  But  there  still  remain  certain  rules,  also  of  a  principal  or 
primary  character,  which  have  been  found  not  to  be  reducible 
within  this  principle  of  arrangement,  being  in  respect  of  their 
objects,  of  a  miscellaneous  and  unconnected  kind.  These  will 
form  the  subject  of  the  following  chapter. 

(w)   Yates  v.   Carlisle,  1  Black.  270;   Price  v.   Fletcher,  Cowp.  727. 

(x)  Price  v.  Fletcher,  Cowp.  727;  Bristow  v.  Wright,  Doug.  667; 
1  Tidd.  552,  4th  Ed.;  Nichol  v.  Wilton,  1  Chitty  Rep.  449,  450;  Car- 
mack  v.  Grundy,  3  Barn.  &  Aid.  272;  Brindley  v.  Dennett,  2  Bing. 
184. 


4.  Thornton  v.  Commonwealth,  113  Va.  736,  73  S.  E.  481;  Penning- 
ton  v.  Gillespie,  63  W.  Va.  541,  61  S.  E.  416;  Union  Stopper  Co.  v. 
McGara,  66  W.  Va.  403,  66  S.  E.  698. 


CHAPTER   LV. 

• 
CERTAIN  MISCELLANEOUS  RULES. 

RULE    I.  , 

§  507.  The  declaration  must  be  conformable  to  the  original  writ. 

RULE   II. 

§  508.  The  declaration  should  have  its  proper  commencement,  and  should 
in  conclusion  lay  damages,  and  allege  production  of  suit. 

RULE  III. 
§  509.  Pleas  must  be  pleaded  in  due  order. 

RULE   IV. 

§  510.  Pleas  in  abatement  must  give  the  plaintiff  a  better  writ  or  declara- 
tion. 

RULE    V. 

§  511.  Dilatory  pleas  must  be  pleaded  at  a  preliminary  stage  of  the  suit. 

RULE  VI. 

§  512.  All  affirmative  pleadings  which  do   not   conclude   to   the  country, 
must  conclude  with  a  verification. 

RULE  VII. 

§  513.  In  all  pleadings  where  a  deed  is  alleged,  under  which  the  party 
claims  or  justifies,  p\rofert  of  such  deed  must  be  made. 

RULE  VIII. 

§  514:  All  pleadings  must  be  properly  entitled. 

RULE   IX. 

§  515.  All  pleadings  ought  to  be  true. 

OF   CERTAIN    MISCELLANEOUS  RULES. 

These  rules  relate  either  to  the  declaration,  the  plea,  of  plead- 
ings in  general,  and  shall  be  considered  in  the  order  thus  indi- 
cated. 

RULE  I. 

§    507.     The    declaration    must   be    conformable   to   the 
original  writ,  (a) 

***** 
[The  author's  discussion  is  omitted  as  no  longer  of  any  prac- 
(a)   Com.  Dig.,  Pleader  (C.  12). 


998  MISCELLANEOUS  RULES  §  508 

tical  value.  It  may  be  noted,  however,  in  this  connection  that  if 
there  is  a  variance  between  the  declaration  and  the  summons 
(writ)  the  defendant  may  crave  oyer  of  the  writ  and  plead  in 
abatement  \he  variance  (Va.  Code,  §  3259,  W.  Va.  Code,  §  3835), 
but  the  courts  readily  permit  amendments  so  as  to  cure  the  vari- 
ance. This  proceeding  is  no  longer  permitted  in  England  be- 
cause the  courts  refuse  to  grant  oyer  of  the  writ.] 

RULE  II. 

§  508.  The  declaration  should  have  its  proper  commence- 
ment, and  should  in  conclusion  lay  damages,  and  al- 
lege production  of  suit. 

The  form  of  commencement  (which  in  personal  actions  is 
fixed  by  Rule  of  Court  M.  T.  3  Will.  4),  will  be  found  among 
the  examples  in  the  first  chapter. 

As  to  the  conclusion :    First,  the  declaration  must  lay  damages. 

In  personal (b)  and  mixed  actions  (though  not  in  an  action 
purely  real),  the  declaration  must  allege  in  conclusion,  that  the 
injury  is  to  the  damage  of  the  plaintiff,  and  must  specify  the 
amount  of  that  damage,  (c)  In  personal  actions  there  is  the  dis- 
tinction, formerly  explained,  between  actions  that  sound  in  dam- 
ages, and  those  that  do  not;  but  in  either,  of  these  cases  it  is 
equally  the  practice  to  lay  damages.  There  is  however  this  dif- 
ference, that  in  the  former  case  damages  are  the  main  object  of 
the  suit,  and  are,  therefore,  always  laid  high  enough  to  cover  the 
whole  demand;  but  in  the  latter,  the  liquidated  debt  or  the  chat- 
tel demanded  being  the  main  object,  damages  are  claimed  in  re- 
spect to  the  detention  only  of  such  debt  or  chattel,  and  are  there- 
fore usually  laid  at  a  small  sum. 

The  plaintiff  cannot  recover  greater  damages  than  he  has  laid 
in  the  conclusion  of  his  declaration. (d) 

[As  hereinbefore  pointed  out,  the  plaintiff  generally  cannot 
recover  any  greater  damages  than  are  laid  in  the  declaration,  but 

(b)  But  penal  actions  are  an  exception. 

(c)  Com.  .Dig.,   Pleader    (C.   84);    10   Rep.    116b,   117a,   b. 

(rf)  Com.  Dig.,  Pleader  (C.  84):  Vin.  Ab.,  Damages  (R.);  10  Rep. 
117  a.  b. 


§  509       PLEAS  MUST  BE  PLEADED  IN  DUE  ORDER         999 

the  damages  need  not  be  laid  high  enough  to  cover  interest  on  the 
plaintiff's  claim.  It  is  sufficient  if  they  cover  the  principal.1  It 
has  been  held,  however,  that  after  verdict  the  ad  damnum  may 
be  increased  by  amendment  to  embrace  the  recovery,2  or  a  re- 
mitter may  be  entered  for  the  excess  above  the  sum  alleged.]3 

Secondly,  the  declaration  should  also  conclude  with  the  pro- 
duction of  suit. 

This  applies  to  actions  of  all  classes,  real,  personal,  and  mixed. 

In  ancient  times  the  plaintiff  was  required  to  establish  the 
truth  of  his  declaration  in  the  first  instance,  and  before  it  was 
called  into  question  upon  the  pleading,  by  the  simultaneous  pro- 
duction of  his  secta,  that  is,  a  number  of  persons  prepared  to 
confirm  his  allegations.  The  practice  of  thus  producing  a  secta 
gave  rise  to  the  very  ancient  formula  almost  invariably  used  at 
the  conclusion  of  a  declaration, — et  inde  producit  sectam;  and 
though  the  actual  production  has  for  many  centuries  fallen  into 
disuse,  the  formula  still  remains.  Accordingly,  except  the  count 
in  dower,  all  declarations  constantly  conclude  thus  — "And  there- 
fore he  brings  his  suit,"  etc.  The  count  in  dower  concludes  with- 
out any  production  of  suit;  a  peculiarity  which  appears  always 
to  have  belonged  to  that  action. 

RULE  III. 
§  509.    Pleas  must  be  pleaded  in  due  order. (?) 

The  order  of  pleading,  as  established  at  the  present  day,  is  as 
follows : 

Pleas 

1.  To  the  jurisdiction  of  the  court. 

2.  To  the  disability  of     I  1.  Of  plaintiff. 

the  person.  )  2.  Of  defendant. 

3.  To  the  count  or  declaration. 

4.  To  the  writ. 

5.  To  the  action  itself, — in  bar  thereof.  (/) 

(e)   Co.    Litt.    303a;    Louguville  v.   Thistleworth,    Lord    Ray.    920. 
(/)   Com.   Dig.,  Abatement   (C.);   1   Chitty,  425. 


1.  Georgia  Home  Ins.  Co.  v.  Goode,  95  Va.  751,  30  S.   E.  366. 

2.  Brown  v.  Smith.  24  111.  196;  Tomlins  v.   Earnshaw.  112   111.  311. 

3.  Crews  v.  Lackland,  67  Mo.  619;  White  v.  Cannadee,  25  Ark.  41. 


1000  MISCELLANEOUS   RULES  §    510 

In  this  order  the  defendant  may  plead  all  these  kinds  of  plea 
successively.  Thus,  he  may  first  plead  to  the  jurisdiction,  and 
upon  demurrer  and  judgment  of  a  respondeat  ouster  thereon, 
may  resort  to  a  plea  to  the  disability  of  the  person ;  and  so  to  the 
end  of  the  series. 

But  he  cannot  plead  more  than  one  plea  of  the  same  kind  or 
degree.  Thus  he  cannot  offer  two  successive  pleas  to  the  juris- 
diction, or  two  to  the  disability  of  the  person. (g) 

So  he  cannot  vary  the  order: — for  by  a  plea  of  any  of  these 
kinds,  he  is  taken  to  waive  or  renounce  all  pleas  of  a  kind  prior 
in  the  series.'* 

And,  if  issue  in  fact  be  taken  upon  any  plea,  though  of  the 
dilatory  class  only,  the  judgment  on  such  issue  (as  elsewhere 
explained)  either  terminates,  or  (in  case  of  -a  plea  of  suspension) 
suspends  the  action ;  so  that  he  is  not  at  liberty,  in  that  case,  to 
resort  to  any  other  kind  of  plea.5 

RULE  IV. 

§  510.    Pleas  in  abatement  must  give  the  plaintiff  a  better 
writ  or  declaration.  (h}Q 

The  meaning  of  this  rule  is,  that  in  pleading  a  mistake  of  form, 
in  abatement  of  the  writ  or  declaration,  the  plea  must,  at  the  same 
time,  correct  the  mistake,  so  as  to  enable  the  plaintiff  to  avoid  the 
same  objection,  in  framing  his  new  writ  or  declaration.  Thus,  if 
a  misnomer  in  the  Christian  name  of  the  defendant  be  pleaded  in 
abatement  (a  case  may  still  occur  in  a  real  action),  the  defendant 
must,  in  such  plea,  show  what  his  true  Christian  name  is,  and  even 
what  is  his  true  surname,  (i)  and  this,  though  the  true  surname  be 

(g)  Com.  Dig.,  Abatement  (I.  3);  Bac.  Ab.,  Abatement  (O.). 

(/O  Com.  Dig.,  Abatement  (I.  1);  Evans  v.  Stevens,  4  T.  R.  227; 
Mainwaring  v.  Newman,  2  Bos.  &  Pul.  120;  Haworth  v.  Spraggs,  8 
T.  R.  515. 

(t)  8  T.  R.  515. 


4.  Howard  v.  Rawson,  2  Leigh.  733. 

5.  As   to   the    law    in    Virginia   on    the   order    of   pleading   and   the 
number  of  pleas  allowed,  see  ante,  §§  183,  184,  185,  198,  Code,  §  3264. 

6.  For  discussion  of  this  rule,  see  ante,  §  183. 


§§    511-512        MUST  CONCLUDE  WITH  VERIFICATION  1001 

already  stated  in  the  declaration ;  lest  the  plaintiff  should,  a  second 
time,  be  defeated  by  error  in  the  name.  For  these  pleas,  as  tend- 
ing to  delay  justice,  are  not  favorably  considered  in  law,  and  the 
rule  in  question  was  adopted  in  a  view  to  check  the  repetition  of 
them. 

This  condition  of  requiring  the  defendant  to  give  a  better  writ, 
etc.,  is  often  a  criterion  to  distinguish  whether  a  given  matter 
should  be  pleaded  in  abatement  or  in  bar.(j)  The  latter  kind  of 
plea,  as  impugning  the  right  of  action  altogether,  can  of  course 
give  no  better  writ  or  declaration,  for  its  effect  is  to  deny  that, 
under  any  form  of  writ  or  declaration,  the  plaintiff  could  recover 
in  such  action.  If,  therefore,  a  better  writ  or  declaration  can  be 
given,  this  shows  that  the  plea  ought  not  to  be  in  bar,  but  in  abate- 
ment. 

It  may  also  be  laid  down  as  a  rule,  that — 

RULE  V. 

§  511.    Dilatory  pleas  must  be  pleaded  at  a  preliminary 
stage  of  the  suit. 

***** 

[This  subject  is  fully  discussed  ante,  §  183.] 

RULE  VI. 

§   512.    All  affirmative  pleadings  which  do  not  conclude  to 
the  country,  must  conclude  with  a  verification,  (k) 

Where  an  issue  is  tendered  to  be  tried  by  jury,  it  has  been  shown 
that  the  pleading  concludes  to  the  country.  In  all  other  cases, 
pleadings,  if  in  the  affirmative  form,  must  conclude  with  a  formula 
of  another  kind,  called  a  verification,  or  an  averment.  The  veri- 
fication is  of  two  kinds, — common  and  special.  The  common  veri- 
fication is  that  which  applies  to  ordinary  cases,  and  is  in  the  fol- 
lowing form:  "And  this  the  said  plaintiff"  (or  defendant)  "is 
ready  to  verify."  The  special  verifications  are  used  only  where 
the  matter  pleaded  is  intended  to  be  tried  by  record,  or  by  some 

(;')   1  Saund.  284,  n.  4;  Evans  v.  Stevens.  4  T.  R.  227. 
(k)   Com.    Dig.,    Pleader    (E.    32),    (E.    33);    Co.    Litt.   303a;    Finch, 
Law  359. 


1002  MISCELLANEOUS   RULES  §    512 

other  method  than  a  jury.  They  are  in  the  following  forms :  "And 
this  the  said  plaintiff"  (or  defendant)  "is  ready  to  verify  by  the 
said  record,"  or,  "And  this  the  said  plaintiff"  (or  defendant),  "is 
ready  to  verify,  when,  where  and  in  such  manner  as  the  court 
here  shall  order,  direct,  or  appoint." 

The  origin  of  this  rule  is  as  follows: 

It  was  a  doctrine  of  the  ancient  law,  little,  if  at  all,  noticed  by 
modern  writers,  that  every  pleading,  affirmative  in  its  nature,  must 
be  supported  by  an  offer  of  some  mode  of  proof;  and  the  reference 
to  a  jury  (who,  as  formerly  explained,  were  in  the  nature  of  wit- 
nesses to  the  fact  in  issue),  was  considered  as  an  offer  of  proof, 
within  the  meaning  of  the  doctrine.  When  the  proof  proposed 
was  that  by  jury,  the  offer  was  made  in  the  viva  voce  pleading,  by 
the  words  prest  d'averrer,  or  prest,  etc.,  which  in  the  record  was 
translated,  Bt  hoc  paratus  est  verificare.  On  the  other  hand, 
where  other  modes  of  proof  were  intended,  the  record  ran,  Ht 
hoc  paratus  est  verificare  per  recordum,  or,  Ht  hoc  paratus  est  veri- 
ficare quocunque  modo  curia  consider  avevit.  But  while  these  were 
the  forms  in  general  observed,  there  was  the  following  exception, 
that  on  the  attainment  of  an  issue,  to  be  tried  by  jury,  the  record 
marked  that  result  by  a  change  of  phrase,  and  substituted  for  the 
verification,  the  conclusion  ad  patriam — to  the  country.  The  writ- 
ten pleadings  (which  it  will  be  remembered  are  framed,  in  general, 
according  to  the  ancient  style  of  the  record),  still  retain  the  same 
formulae  in  these  different  cases,  and  with  the  same  distinctions 
as  to  their  use.  They  preserve  the  conclusion  to  the  country,  to 
mark  the  attainment  of  an  issue  triable  by  jury,  but  in  other  cases 
conclude  with  a  translation  of  the  old  Latin  phrase,  Ht  hoc  para- 
tus, etc. :  and  hence  the  rule,  that  an  affirmative  pleading  that 
does  not  conclude  to  the  country,  must  conclude  with  a  verifi- 
cation.^) 

As  the  ancient  rule  requiring  an  offer  of  proof  extended  only 
to  affirmative  pleadings  (those  of  a  negative  kind  being  in  general 
incapable  of  proof),  so  the  rule  now  in  question  applies  to  the 
former  only,  no  verification  being  in  general  necessary  in  a  nega- 

(/)  "Every  plea  or  bar,  replication,  etc.,  must  be  offered  to  be  proved 
true  by  saying  in  the  plea,  et  hoc  paratus  est  verificare,  which  we  call 
an  averment."  Finch.  Law,  359. 


§    513  PROFERT  OF  DEED  MUST  BE  MADE  1003 

tive  pleading ;(w)  but  it  is  nevertheless  the  practice  to  conclude 
with  a  verification  all  negative  as  well  as  affirmative  pleadings 
that  do  not  conclude  to  the  country. 

The  rule  in  question  has  no  longer  any  value  or  meaning  as  re- 
gards the  object  it  originally  proposed,  for  till  the  trial  of  the  issue 
it  is  no  longer  necessary  for  either  party  now  to  refer  to  his  proofs. 
But  as  a  rule  of  form,  it  is  attended  with  convenience,  as  serving 
to  mark  whether  the  pleading  be  intended  to  amount  to  a  tender 
of  issue. 

RULE  VII. 

§  513.  In  all  pleadings  where  a  deed  is  alleged,  under 
which  the  party  claims  or  justifies,  profert  of  such 
deed  must  be  made,  (n) 

Where  a  party  pleads  a  deed,  and  claims  or  justifies  under  it, 
the  mention  of  the  instrument  is  accompanied  with  a  formula  to 
this  effect: — "one  part  of  which  said  indenture"  (or  other  deed,) 

sealed  with  the  seal  of  the  said  ,  the  said new 

brings  here  into  court,  the  date  whereof  is  the  day  and  year 
aforesaid. 

This  formula  is  called  making  profert  of  the  deed.  Its  present 
practical  import  is,  that  the  party  has  the  instrument  ready  for 
the  purpose  of  giving  oyer;  and  at  the  time  when  the  pleading 
was  viva  voce,  it  implied  an  actual  production  of  the  instrument 
in  open  court  for  the  same  purpose. 

The  rule  in  general  applies  to  deeds  only.  No  profert,  there- 
fore is  necessary  of  any  written  agreement  or  other  instrument 
not  under  seal(o)  nor  of  any  instrument  which,  though  under 
seal,  does  not  fall  within  the  technical  definition  of  a  deed;  as, 
for  example,  a  sealed  will  or  award.  (/>)  This,  however,  is  sub- 
ject to  exception  in  the  case  of  letters  testamentary  and  letters  of 
administration;  executors  and  administrators  being  bound  when 
plaintiffs  to  support  their  declaration,  by  making  profert  of  these 
instruments. 

(»H)   Co.  Litt.  303a;   Millner  v.  Crowdall,  1  Show.  338. 
(n)  Com.  Dig.,  Pleader  (O!  1);  Leyfield's  Case,  10  Rep.  88. 
(0)   Com.  Dig.,  Pleader  (O.  3);  Aylesbury  v.  Harvey.  3  Lev.  205. 
(/>)   Com.  Dig.,  Pleader  (O.  3);  2  Saund.  62b,  n.   (5). 


1004  MISCELLANEOUS   RULES  §    513 

The  rule  applies  only  to  cases  where  there  is  occasion  to  men- 
tion the  deed  in  pleading.  When  the  course  of  allegation  is  not 
such  as  to  lead  to  any  mention  of  the  deed,  a  profert  is  not  neces- 
sary though  in  fact  it  may  be  the  foundation  of  the  case  or  title 
pleaded. 

The  rule  extends  only  to  cases  where  the  party  claims  under 
the  deed,  or  justifies  under  it ;  and  therefore  when  the  deed  is 
mentioned  only  as  inducement  or  introduction  to  some  other  mat- 
ter, on  which  the  claim  or  justification  is  founded,  or  alleged  not 
to  show  right  or  title  in  the  party  pleading,  but  for  some  collateral 
purpose,  no  profert  is  necessary. (g) 

The  rule  is  also  confined  to  cases  where  the  party  relies  on  the 
direct  and  intrinsic  operation  of  the  deed.(r)  Thus,  in  pleading  a 
feoffment  no  profert  is  necessary,  for  the  estate  passes  not  by 
the  deed  but  the  livery.  So  in  pleading  a  conveyance  by  lease 
and  release  under  the  statute  of  uses,  it  is  not  necessary  to  make 
profert  of  the  lease,  because  it  is  the  statute  that  gives  effect  to 
the  bargain  and  sale  for  a  year,  and  the  deed  does  not  intrinsically 
establish  the  title.  But  in  pleading  the  release  it  would  seem  that 
profert  ought  to  be  made,  as  the  same  reason  does  not  apply. 

Another  exception  to  the  rule  obtains  where  the  deed  is  lost  or 
destroyed  through  time  or  accident,  or  is  in  the  possession  of  the 
opposite  party. (s)  These  circumstances  dispense  with  the  neces- 
sity of  a  profert ;  and  the  formula  is  then  as  follows ; — "Which 
said  writing  obligatory,"  (or  other  deed,)  "having  been  lost  by 
lapse  of  time,"  (or  "destroyed  by  accidental  fire,"  or,  "being  in 
the  possession  of  the  said  —  -")  "the  said  -  -  cannot  pro- 
duce the  same  to  the  court  here."(£) 

The  reason  assigned  for  the  rule  requiring  profert  is,  that  the 
court  may  be  enabled  by  inspection  to  judge  of  the  sufficiency 
of  the  deed.(w)  The  author,  however,  presumes  to  question, 
whether  the  practice  of  making  profert  originated  in  any  view  of 

(q)  Bellamy's  Case,  6  Rep.  38a;  Holland  v.  Shelby,  Hob.  303; 
Banfill  v.  Leigh,  8  T.  R.  571;  Com.  Dig.,  Pleader  (O.  16);  1  Saund. 
9a,  n.  1. 

O)   Read  v.  Brockman,  3  T.  R.  156. 

(s~)   Read  v.  Brockman,  3  T.  R.  156;  Carver  v.  Pinkney,  3  Lev.  82. 

(0  2  Chitty,  153. 

(«)   Leyfield's  Case,  10  Rep.  92b;  Co.  Litt.  35b. 


§  514         ALL  PLEADINGS  MUST  BE  PROPERLY  ENTITLED  1005 

this  kind.  It  will  be  recollected,  that  by  an  ancient  rule,  all  af- 
firmative pleadings  were  formerly  required  to  be  supported  by 
an  offer  of  some  mode  of  proof.  As  the  pleader,  therefore,  of 
that  time,  concluded  in  some  cases  by  offering  to  prove  by  jury, 
or  by  the  record,  so  in  others  he  maintained  his  pleading  by  pro- 
ducing a  deed  as  proof  of  the  case  alleged.  In  so  doing,  he  only 
complied  with  the  rule  that  required  an  offer  of  proof.  After- 
wards the  trial  by  jury  becoming  more  universally  prevalent,  it 
was  often  applied,  as  at  the  present  day,  to  determine  questions 
arising  as  to  the  genuineness  or  validity  (jf  the  deed  itself  so  pro- 
duced; and  from  this  time,  a  deed  seems  to  have  been  no  longer 
considered  as  a  method  of  proof,  distinct  and  independent  of  that 
by  jury.  Consequently  it  became  the  course  to  introduce  as  well 
in  pleadings  where  the  party  relied  on  a  deed,  as  in  other  cases, 
the  common  verification,  or  offer  to  prove  by  jury ;  and  the  true 
object  of  the  profert  was  in  this  manner  not  only  superseded  but 
forgotten,  though  in  practice  it  still  continued  to  be  made.7 

The  actual  value  of  the  rule,  whatever  its  origin  or  ancient 
object,  consists  in  enabling  the  adverse  party  to  obtain  inspection 
(by  demanding  oyer)  of  the  instrument  of  which  profert  is  made. 
Where  the  instrument  is  such  that  no  profert  need  be  made  of 
it,  he  has  no  such  means  of  obtaining  inspection,  and  he  is  there- 
fore obliged  to  resort  to  the  less  convenient  course  of  applying 
to  a  judge  for  ah  order  that  inspection  be  granted.  But  an  order 
of  this  kind  will  in  general  be  made  as  a  matter  of  course,  with 
respect  to  all  instruments  which  either  party  sets  forth  in  the 
pleading,  and  which  are  of  such  a  kind  as  not  to  require  profert. 

RULE  VIII. 

§   514.    All  pleadings  must  be  properly  entitled. (v) 

***** 
[This  is  mere  matter  of  form  and  is  not  essential  and  its  omis- 

(v)  1  Chitty,  261,  527,  528;  1  Arch.  72,  162;  Toppjng  v.  Fuge,  1 
Marsh.  34. 


7.  It  is  provided  by  statute  in  Virginia  that  it  shall  not  be  nec- 
essary to  make  profert  of  any  deed,  letters  testamentary,  or  com- 
mission of  administration,  but  a  defendant  may  have  oyer  in  like 
manner  as  if  profert  were  made.  Code,  §  3244. 


1006  MISCELLANEOUS  RULES  §  515 

sion  is  not  error,  but  it  is  the  better  practice  to  give  the  title  of 
the  court,  and  some  pleaders  also  give  the  Rules  to  which  the 
writ  is  returnable,  thus : 

In  the  Circuit  Court  of  Rockbridge  County, 
Rockbridge  County,  towit:  1st  June  Rules,  1912.] 

RULE;  IX. 
§   515.    All  pleadings  ought  to  be  true.(w) 

While  this  rule  is  recognized,  it  is  at  the  same  time  to  be  ob- 
served, that  in  general  there  is  no  means  of  enforcing  it,  because 
regularly  there  is  no  proper  way  of  proving  the  falsehood  of  an 
allegation,  till  issue  has  been  taken,  and  trial  had  upon  it. 

Lastly,  there  is  an  exception  to  the  rule  in  question,  in  the  case 
of  certain  fictions  established  in  pleading,  for  the  convenience  of 
justice.  Thus,  the  declaration  in  ejectment  always  states  a  ficti- 
tious demise,  made  by  the  real  claimant  to  a  fictitious  plaintiff:8 
and  the  declaration  in  trover  uniformly  alleges,  though  almost 
always  contrary  to  the  fact,  that  the  defendant  found  the  goods, 
in  respect  of  which  the  action  is  brought.  [So  in  implied  as- 
sumpsit  as  where  a  horse  is  stolen  and  the  thief  is  sued  for  the 
price,  a  sale  is  alleged  to  the  thief,  and  this  allegation  is  not  trav- 
er  sable.] 

O)  Bac.  Ab.,  Pleas,  etc.  (G.  4):  Sade  f  TVake.  Hob.  295;  Smith 
v.  Yeomans,  1  Saund.  316. 


8.  In  Virginia,  and  in  most,  if  not  all  the  States,  all  fictions  have 
been  abolished  in  the  action  of  ejectment,  and  the  action  is  brought 
by  the  real  claimant  of  the  land  against  the  person  actually  occupy- 
ing the  same  adversely  to  the  plaintiff.  See  ante,  §  116. 


CHAPTER  LVI. 

CONCLUSION. 
§   516.    Merits  of  system. 

To  the  view  that  has  been  taken  in  this  work,  of  the  principles 
of  the  system  of  pleading,  it  may  be  useful  to  subjoin  a  few  re- 
marks on  the  merits  of  that  system,  considered  in  reference  to 
its  effects  in  the  administration  of  justice. 

When  compared  with  other  styles  of  proceeding,  it  has  been 
shown  to  possess  this  characteristic  peculiarity — that  it  produces 
an  issue;  that  is,  it  obliges  the  parties  so  to  plead,  as  to  develop 
by  the  effect  of  their  own  allegations,  some  particular  question 
as  the  subject  for  decision  in  the  cause.  With  respect  to  the  de- 
gree of  particularity  with  which  such  question  or  issue  is  devel- 
oped, we  have  seen  in  the  first  place,  that  it  is  always  distinctly 
defined  as  consisting  either  of  fact  or  law,  because,  in  the  former 
case  it  arises  on  a  traverse,  in  the  latter  it  presents  itself  in  the 
very  different  shape  of  a  demurrer.  But  independently  of  this 
distinction,  it  will  be  remembered,  that  the  issue  produced  is  re- 
quired to  be  certain  or  particular.  It  is  true  that  some  issues  are 
framed  with  less  certainty  than  others :  but  still  it  is  the  universal 
property  of  all,  to  define  the  question  for  decision,  in  a  shape 
more  or  less  specific. 

That  prior  to  the  institution  of  any  proceeding  for  the  purpose 
of  decision,  the  question  to  be  decided  should  be  by  some  means 
publicly  adjusted  as  consisting  either  of  fact  or  law,  and  this  too 
with  some  certainty  or  specification  of  circumstance,  is  evidently 
required,  by  the  nature  of  the  English  common  law  system  of 
jurisprudence.  For,  by  the  general  principles  of  that  system, 
questions  of  law  are  determinable  exclusively  by  the  judges; 
while  questions  of  fact  (some  few  instances  excepted),  can  be 
decided  only  by  a  jury ;  and  in  those  excepted  cases  are  referred 
to  other  appropriate  modes  of  trial.  Unless  therefore  some  pub- 
lic adjustment  of  the  kind  above  described,  took  place  between  the 
parties,  they  would  be  unable,  after  the  pleading  had  terminated, 
to  pursue  further  their  litigation.  For  they  might  disagree  upon 


1008  CONCLUSION  §    516 

the  very  form  of  the  proceeding,  by  which  the  decision  was  to  be 
obtained ;  or,  if  they  both  took  the  same  view  of  the  general  na- 
ture of  the  question,  so  that  they  both  referred  their  controversy 
to  the  same  method  of  determination,  for  example,  trial  by  jury 
they  might  yet  differ  as  to  the  shape  of  the  question  to  be  re- 
ferred. 

A  public  adjustment  of  the  point  for  decision  of  the  specific 
kind  above  described,  being  for  this  reason  necessary,  there  are 
two  ways  in  which  it  might  conceivably  be  effected,  either  by  a 
retrospective  selection  from  the  pleading,  or  by  the  mere  opera- 
tion of  the  pleading  itself.  The  law  of  England,  in  producing 
an  issue,  pursues  the  latter  method.  For  as  has  been  shown,  the 
alternate  allegations  are  so  managed,  that  by  the  natural  result 
of  that  contention,  the  undisputed  and  immaterial  matter  is  con- 
stantly thrown  off,  until  the  parties  arrive  at  demurrer,  or  trav- 
erse; upon  which  a  tender  of  issue  takes  place,  on  the  one  hand, 
and  an  acceptance  of  it  on  the  other;  and  the  question  involved 
in  the  demurrer  or  traverse,  is  thus  mutually  referred  for  de- 
cision. 

The  production  of  an  issue,  when  thus  defined  and  explained, 
appears  to  be  attended  with  considerable  advantage  in  the  ad- 
ministration of  justice,  for  the  better  comprehension  of  which 
it  will  be  useful  to  advert  to  those  styles  of  juridical  proceeding 
in  which  no  issue  is  produced. 

In  almost  every  plan  of  judicature  with  which  we  are  ac- 
quainted, except  that  of  the  common  law  of  England,  the  course 
of  proceeding  is  to  make  no  public  adjustment  whatever  of  the 
precise  question  for  decision.  For  as  all  matters,  whether  of 
law  or  fact  are  decided  by  the  judge,  and  by  him  alone,  upon 
proofs  adduced  on  either  side  by  the  parties,  the  necessity  upon 
which  that  practice  has  been  shown  to  be  founded  in  the  Eng- 
lish common  law  system  does  not  arise.  Consequently  the  mutual 
allegations  are  allowed  to  be  made  at  large  as  it  may  be  called; 
thati  is,  with  no  view  to  the  exposition  of  the  particular  question 
in  the  cause  by  the  effect  of  the  pleading  itself.  The  litigants 
indeed,  before  they  proceed  to  proof,  must  explore  the  particular 
subject  in  controversy,  in  order  to  ascertain  whether  any  proof 
be  required,  and  to  guide  them  to  the  points  to  which  their  proof 
is  to  be  directed.  And  upon  the  hearing  of  the  cause,  the  judge 


§    516  MERITS  OF  SYSTEM  1009 

must  of  course  also  ascertain  for  his  own  information,  the  pre- 
cise point  to  be  decided,  and  consider  in  what  manner  it  is  met 
by  the  evidence.  But  in  these  proceedings,  neither  the  court  nor 
the  parties  have  any  public  exposition  of  the  point  in  controversy 
to  guide  them;  and  they  judge  of  it  as  a  matter  of  private  dis- 
cretion, upon  retrospective  examination  of  the  pleadings. (a) 

This,  as  already  stated,  is  the  almost  universal  method ;  but 
there  is  another,  which  also  requires  notice;  viz,  that  which  at 
present  prevails  in  the  Scottish  judicature.  Since  the  trial  by 
jury  in  civil  causes  has  been  engrafted  upon  the  judicial  system 
of  Scotland,  it  has,  of  course,  been  found  necessary  to  adjust  and 
settle  publicly,  between  the  parties,  the  particular  question  or 
questions  on  which  the  decision  of  the  jury  is  to  be  taken.  But  in- 
stead of  eliciting  such  question  (called  by  analogy  to  the  law  of 
England,  the  issue),  by  the  mere  effect  and  operation  of  the 
pleading  itself,  according  to  the  practice  of  the  English  courts,  the 
course  taken  has  been  to  adjust  and  settle  the  issue  retrospec- 
tively from  the  allegations,  by  an  act  of  court ;  and  these  allega- 
tions have  consequently  continued  to  be  taken  at  large,  according 
to  the  definition  of  that  term  already  given. (b) 

Now  the  English  common  law  method,  as  compared  with  either 
of  those  that  have  been  just  described,  possesses  this  advantage, 

(a)  The  practice  of  the  courts  of  equity  in  this  country  forms  no 
exception  to  this  general  statement.     For,  though  the  common  repli- 
cation offers  a  formal   contradiction  to  the  answer,  a  contradiction 
which  initiates,  in  some  measure,  the  form  of  an  issue  in  the  common 
law,  and  borrows  its  name, — yet,  in  substantive  effect,  the  two  results 
are   quite   different;   for  the  contradiction  to  which  the  name  of  an 
issue   is   thus   given   in   the    equity  pleading   is   of   the   most   general 
and  indefinite  kind,  and  develops  no  particular  question  as  the  sub- 
ject  for  decision  in  the  cause. 

(b)  It  is  to  be  understood,  however,  that  the  issues  are  not  ex- 
tracted from  the  pleadings  in  the  full  latitude  of  allegation  sometimes 
allowed  to  them  by  the  Scottish  law,  but  from  allegations  of  a  more 
succinct   and   specific   character,   called   condescendences  and   answers; 
which  the  parties  are  directed  to  give  in.  as  the  materials  from  which 
the  court  are  to  adjust  the  issue.     Yet,  even  these  condescendences 
and  answers  are  pleadings  at  large,  in  the  sense  in  which  the  author 
uses  that  term;  for  they  do  not  develop  the  point  in  controversy  by 
their  intrinsic  operation. 

-64 


1010  CONCLUSION  §    516 

that  the  undisputed  or  immaterial  matter  which  every  controversy 
more  or  less  involves,  is  cleared  away  by  the  effect  of  the  plead- 
ing itself :  and  therefore  when  the  allegations  are  finished,  the 
essential  matter  for  decision  necessarily  appears.  But  under  the 
rival  plans  of  proceeding,  by  which  the  statements  are  allowed 
to  be  made  at  large,  it  becomes  necessary  when  the  pleading  is 
over,  to  analyze  the  whole  mass  of  allegation,  and  to  effect  for 
the  first  time  the  separation  of  the  undisputed  and  immaterial 
matter,  in  order  to  arrive  at  the  essential  question.  This  opera- 
tion will  be  attended  with  more  or  less  difficulty,  according  to  the 
degree  of  vagueness  or  prolixity  in  which  the  pleaders  have  been 
allowed  to  indulge;  but  where  the  allegations  have  not  been  con- 
ducted upon  the  principle  of  coming  to  issue,  or  in  other  words, 
have  been  made  at  large,  it  follows  from  that  very  quality,  that 
their  closeness  and  precision  can  never  have  been  such  as  to  pre- 
clude the  exercise  of  any  discretion  in  extracting  from  them  the 
true  question  in  controversy;  for  this  would  amount  to  the  pro- 
duction of  an  issue.  Therefore  it  will  always  be  in  some  -measure 
doubtful,  or  a  point  for  consideration,  to  what  extent,  and  in 
what  exact  sense,  the  allegations  on  one  side,  are  disputed  on  the 
other,  and  also  to  what  extent  the  law  relied  upon  by  one  of  the 
parties,  is  controverted  by  his  adversary.  And  this  difficulty, 
while  thus  inherent  in  the  mode  of  proceeding,  will  be  often  ag- 
gravated, and  present  itself  in  a  more  serious  form,  from  the 
natural  tendency  of  judicial  statements,  when  made  at  large,  to 
the  faults  of  vagueness  and  prolixity.  For  where  the  pleaders 
state  their  cases  in  order  to  present  the  materials,  from  which 
the  mind  of  the  judge  is  afterwards  to  inform  itself  of  the  point 
in  controversy,  they  will  of  course  be  led  to  indulge  in  such  am- 
plification on  either  side,  as  may  put  the  case  of  the  particular 
party  in  the  fullest  and  most  advantageous  light,  and  to  pro- 
pound the  facts  in  such  form  as  may  be  thought  most  impressive 
or  convenient,  though  at  the  expense  of  clearness  or  precision. 
On  the  other  hand,  it  is  evident,  that  upon  the  Engh'sh  common 
law  method,  the  pleaders  having  no  object  but  to  produce  the 
issue,  are  without  the  least  inducement  either  to  an  uncertain,  or 
a  too  copious  manner  of  statement ;  and,  on  the  contrary,  have 
a  mutual  interest  to  effect  the  result  at  which  they  aim,  in  the 
shortest  and  most  direct  manner. 


§    516  MERITS  OF  SYSTEM  1011 

The  difficulty  that  must  thus  be  always,  in  some  measure,  found 
under  the  method  of  pleading  at  large,  in  ascertaining  the  precise 
extent  of  the  mutual  admissions  of  fact  or  law,  is  attended  with 
this  obvious  inconvenience  that  a  party  may  be  led  to  proceed 
to  proof  or  trial,  upon  matters  not  disputed,  or  not  considered 
as  material  to  be  disputed,  on  the  other  side,  or  to  omit  the  proof 
or  trial  of  matters  which  are  meant  to  be  disputed,  and  which 
are  in  fact  essential  to  the  final  determination  of  the  cause.  The 
judge  may  consequently  find,  upon  examination  of  the  whole 
process,  and  hearing  the  further  allegations  and  arguments  of 
the  parties,  that  the  investigation  of  fact  has  either  been  re- 
dundant, and  therefore  attended  with  useless  expense  and  de- 
lay; or  defective,  so  as  not  to  present  him  with  the  materials  on 
which  he  can  properly  adjudicate.  On  the  o'ther  hand,  these 
evils  are  almost  unknown  to  the  English  system  of  judicature. 

On  the  whole,  then,  it  may  be  fairly  concluded,  that  the  system 
of  pleading  is  not  only  distinguished  from  other  methods  of  ju- 
dicial allegation  by  its  production  of  an  issue,  but  is  in  this  re- 
spect advantageously  distinguished  from  them,  and  derives  from 
this  singularity  of  proceeding,  considerable  protection  from  in- 
convenienfes  under  which  they  severely  labor. 

It  also  appears  to  deserve  high  praise,  in  respect  of  such  of  its 
rules  as  are  classed  in  this  work,  by  their  tendency  to  prevent 
obscurity,  or  confusion,  prolixity,  or  delay.  Here,  indeed,  the 
objects  pursued  are  not  peculiar  to  the  English  system,  for  the 
avoidance  of  such  faults  is  of  course,  in  some  measure,  the  aim 
of  every  enlightened  plan  of  judicature.  But,  in  general,  there 
is  either  a  want  of  regulation  to  enforce  the  object,  or  the  regula- 
tion is  found  to  be  ineffectual.  On  the  contrary,  the  system  of 
pleading  has  various  rules  specifically  designed  to  promote  pre- 
cision and  brevity  in  the  method  of  allegation,  rules  exclusively 
its  own,  and  extremely  strict  and  efficacious  in  their  character. 
Accordingly,  it  has  ever  been  proverbially  famous  for  the  former 
of  these  qualities ;  and  in  modern  times,  and  under  the  influence 
of  enlightened  judges,  the  principle  of  avoiding  the  introduction 
of  unnecessary  matter  has  been(  so  rigorously  applied,  and  the 
cases  of  unnecessary  allegation  have  been  so  well  defined  and 
understood,  as  considerably  to  remove  its  not  less  ancient  and 
notorious  reproach  of  amplification  and  prolixity. 


1012  CONCLUSION  §  516 

While  the  system  of  pleading  is  thus  in  general  distinguished 
for  the  excellence  of  its  structure,  it  cannot  be  denied  that  there 
are  points  on  which  its  merit  is  questionable. 

***** 

There  is  something  not  satisfactory  in  its  tendency  to  decide 
the  cause,  upon  points  of  mere  form. 

It  will  be  observed,  that,  in  general,  whenever  a  demurrer  oc- 
curs in  respect  of  insufficiency  in  the  manner  of  statement,  and 
not  for  insufficiency  in  substance,  or  where  an  issue,  either  in  fact 
or  law,  is  joined  upon  a  plea  in  abatement,  the  issue  joined  in 
such  cases,  involved  a  question  of  form  only.  And  as  the  issue, 
whatever  be  its  nature,  is  in  general  decisive  of  the  fate  of  the 
cause,  it  follows  that  where  issue  is  so  joined,  the  action  must 
commonly  be  decided  upon  a  point  of  form,  and  not  upon  the 
merits  of  the  case, — a  result  that  seems  inconsistent  with  sound 
justice.  Thus,  if  the  plaintiff,  in  an  action  of  trespass,  should 
happen  to  omit  in  his  declaration,  to  state  the  day  or  time  at 
which  the  trespass  was  committed,  and  the  defendant  should 
demur  specially  for  this  omission,  and  the  issue  joined  on  this 
demurrer  should  be  decided  (as  it  would  be)  in  favor  of  the 
defendant, — by  the  regular  consequence,  judgment  would  be  also 
given  for  the  defendant,  and  the  plaintiff's  claim  would  be  de- 
feated by  the  omission  of  a  few  words  in  his  declaration.1  Yet 

1.  This  objection  is  met  in  Virginia  by  -the  following  provisions 
of  the  Code: 

Section  3245. — "All  allegations  which  are  not  traversable,  and 
which  the  party  could  not  be  required  tp  prove,  may  be  omitted, 
unless  when  they  are  required  for  the  right  understanding  of  alle- 
gations that  are  material." 

Section  3246. — "No  action  shall  abate  for  want  of  form,  where 
the  declaration  sets  forth  sufficient  matter  of  substance  for  the 
court  to  proceed  upon  the  merits  of  the  cause." 

Section  3272. — "On  a  demurrer  (unless  it  be  to  a  plea  in  abate- 
ment), the  court  shall  not  regard  any  defect  or  imperfection  in  the 
declaration  or  pleadings,  whether  it  has  been  heretofore  deemed 
mispleading  or  insufficient  pleading  or  not,  unless  there  be  omitted 
something  so  essential  to  the  action  or  defence,  that  judgment,  ac- 
cording to  law  and  the  very  right  of  the  cause,  cannot  be  given. 
No  demurrer  shall  be  sustained,  because  of  the  omission  in  any 
pleading  of  the  words,  'this  he  is  ready  to  verify,'  or  'this  he  is 
ready  to  verify  by  the  record,'  or,  'As  appears  by  the  record;'  but 


§516  MERITS  OF  SYSTEM  1013 

we  have  seen  that  time,  if  alleged,  need  not  have  been  proved  as 
laid;  and  its  omission,  therefore,  is  a  fault  of  the  most  strictly 
formal  kind.  Again,  if  the  defendant  should  plead  in  abate- 
ment, that  he  is  sued  by  a  wrong  Christian  name,  and  the  plain- 
tiff should  choose  to  take  issue  in  fact  upon  the  plea,  and  go  to 
trial,  the  verdict,  if  given  for  the  plaintiff,  entitles  him  to  judg- 
ment quod  recuperet,  and  he  consequently  recovers  his  demand. 
The  case  is  otherwise,  however,  if  the  plaintiff  succeeds  on  an 
issue  in  law  on  a  plea  in  abatement,  for  there  the  judgment  is  re- 
spondent ouster  only.  On  the  other  hand,  if  given  for  the  de- 
fendant, it  is  followed  by  judgment  of  breve  (or  billa)  cassetur; 
and  thus  the  action  in  one  case  and  in  the  other,  both  the  action 
and  the  demand  itself,  are  disposed  of  upon  a  mere  question 
relating  to  the  Christian  name  of  the  defendant.2 

But  if  any  objection  attach  on  this  ground,  to  the  system  of 
pleading,  its  weight,  at  least,  is  much  diminished,  by  the  liberality 
with  which  amendments  are  allowed  in  the  modern  practice.3 

the  opposite  party  may  be  excused  from  replying,  demurring,  or 
otherwise  answering  to  any  pleading,  which  ought  to  have,  but 
has  not,  such  words  therein,  until  they  be  inserted." 

2.  This  objection  has  been  met  in  Virginia  by  Code,  §  3258,  which 
is  as  follows: 

"No  plea  in  abatement  for  a  misnomer  shall  be  allowed  in  any 
action,  but  in  a  case  wherein,  but  for  this  section,  a  misnomer  would 
have  been  pleadable  in  abatement,  the  declaration  may,  on  the  de- 
fendant's motion,  and  on  affidavit  of  the  right  name,  be  amended 
by  inserting  the  right  name." 

3.  The  right  to  amend  is  given  in  Virginia  by  the  following  pro- 
visions of  the  Code: 

Section  3253. — "The  plaintiff  may  of  right  amend  his  declaration 
*  *  *  before  the  defendant's  appearance." 

Section  3258. — See  last  note. 

Section  3258a. — Provides  as  follows:  "That  whenever  it  shall  ap- 
pear in  any  action  at  law  or  suit  in  equity  heretofore  or  hereafter 
instituted,  by  the  pleadings  or  otherwise,  that  there  has  been  a  mis- 
joinder  of  parties,  plaintiff  or  defendant,  the  court  may  order  the  ac- 
tion or  suit  to  abate  as  to  any  party  improperly  joined  and  to  pro- 
ceed by  or  against  the  others  as  if  such  misjoinder  had  not  been 
made,  and  the  court  may  make  such  provision  as  to  costs  and  con- 
tinuances as  may  be  just. 

Section  3259. — "In  other  cases,  a  defendant,  on  whom  the  process 
summoning  him  to  answer  appears  to  have  been  served,  shall  not 


1014  CONCLUSION  §  516 

Thus,  in  the  case  of  demurrer  above  supposed,  if  the  plaintiff 
should  imprudently  join  in  demurrer  (instead  of  applying,  as  he 
ought,  for  leave  to  amend),  the  court  would  nevertheless,  after 
joinder  in  demurrer,  and  even  after  the  demurrer  had  come  on  to 
be  argued,  allow  him  to  amend;  and  the  only  inconvenience  that 
he  would  suffer,  would  be  the  payment  of  costs.  The  second  case, 
indeed,  viz,  that  in  which  an  issue  in  fact  is  joined  upon  a  plea  in 
abatement,  is  such  as  would  not  allow  of  amendment,  unless 
applied  for  before  the  cause  had  come  on  for  trial.  But  even  in 
this  instance,  it  is  not  probable  that  any  hardship  or  injustice 
would  arise  by  the  final  determination  of  the  cause,  upon  the  point 
of  form,  for  if  the  unsuccessful  party  had  had  any  substantial 
case  upon  the  merits,  he  would  presumably  have  applied  to 
amend,  without  hazarding  the  trial. 

take  advantage  of  any  defect  in  the  writ  or  return,  or  any  variance 
in  the  writ  from  the  declaration,  unless  the  same  be  pleaded  in 
abatement.  And  in  every  such  case  the  court  may  permit  the  writ 
or  declaration  to  be  amended  so  as  to  correct  the  variance,  and 
permit  the  return  to  be  amended  upon  such  terms  as  to  it  shall 
seem  just." 

Section  3263. — "After  such  plea  in  abatement,  the  plaintiff,  without 
proceeding  to  trial  upon  an  issue  thereon,  may  amend  his  declara- 
tion, and  make  the  persons,  named  in  such  plea  as  joint  contractors, 
defendants  in  the  case  with  the  original  defendants,  and  cause  proc- 
ess to  be  served  upon  the  new  defendants;  and  if  it  appear  by  the 
subsequent  pleadings  in  the  action,  or  at  the  trial  thereof,  that  all 
the  original  defendants  are  liable,  but  that  one  or  more  of  the  other 
persons  named  in  such  plea  are  not  liable,  the  plaintiff  shall  be  en- 
titled to  judgment,  or  to  verdict  and  judgment,  as  the  case  may  be, 
against  the  defendants  who  appear  liable;  and  such  as  are  not  liable 
shall  have  judgment  and  recover  costs  as  against  the  plaintiff,  who 
shall  be  allowed  the  same  as  costs  against  the  defendants  who  so 
pleaded." 

Section  3384. — "If,  at  the  trial  of  any  actions,  there  appears  to  be  a 
variance  between  the  evidence  and  allegations  or  recitals,  the  court, 
if  it  consider  that  substantial  justice  will  be  promoted  and  that  the 
opposite  party  cannot  be  prejudiced  thereby,  may  allow  the  plead- 
ings to  be  amended,  on  such  terms  as  to  the  payment  of  costs  or 
postponement  of  the  trial,  or  both,  as  it  may  deem  reasonable.  Or, 
instead  of  the  pleadings  being  amended,  the  court  may  direct  the 
jury  to  find  the  facts,  and,  after  such  finding,  if  it  consider  the  va- 
riance such  as  could  not  have  prejudiced  the  opposite  party,  shall 
give  judgment  according  to  the  right  of  the  case." 


§    516  MERITS  OF  SYSTEM  1015 

Again,  some  doubt  may  reasonably  be  felt  with  respect  to  the 
advantage  of  that  part  of  the  system,  which  relates  to  the  single- 
ness of  the  issue.4  Provided  only,  that  a  party  be  restrained  from 
raising  issues  inconsistent  with  each  other,  or  such  as  he  knows 
to  be  without  foundation  in  fact,  it  may  be  questioned  whether 
any  sufficient  considerations  of  utility  or  convenience  can  be 
urged  at  the  present  day,  in  favor  of  the  object  of  singleness. 
At  all  events,  some  presumption  must  arise  against  the  value  of 
this  object,  in  modern  pleading,  when  we  recollect  that  the  long 
permitted  use  of  several  counts,  in  respect  of  the  same  cause  of 
action,  and  the  provision  of  the  statute  of  Anne,  allowing  the  use 
of  several  pleas,  have  declared  it  as  the  sense  both  of  the  bench 
and  the  legislature,  that  if  the  original  principle  deserved  to  be 
retained,  it  required  at  least  material  mitigation.  However,  it  is 
clear  that  the  principle  of  singleness,  is  so  far,  at  least,  a  right 
and  valuable  one,  as  it  may  tend  to  prevent  the  parties  from  of- 
fering inconsistent  allegations,  or  such  as  they  may  know  to  be 
false.  For,  though  the  interests  of  justice  seem  to  require,  in 
many  cases,  the  allowance  of  several  counts  or  pleas  in  respect 
of  the  same  demand,  they  are,  on  the  other  hand,  directly  opposed 
to  the  allowance  of  repugnant  ones,  and  where  one  of  the  mat- 
ters alleged  must  evidently  be  false,  the  party  should,  of  course, 
be  obliged  to  make  his  election  between  them :  and  so,  in  allow- 
ing a  party  to  make  different  allegations,  he  ought,  if  possible, 
to  be  excluded  from  such  as  (whether  inconsistent  or  not  with 
what  has  been  previously  pleaded)  he  must  know  to  be  without 
foundation  in  fact.  Yet  these,  which  are  perhaps  the  only  bene- 
ficial results  that  can  flow  from  the  principle  of  singleness,  the 
present  state  of  the  law  against  duplicity,  unfortunately  fails  to 
produce.  For,  first,  a  plaintiff  is  at  liberty  to  adopt  as  many 
counts  as  he  pleases,  however  apparent  it  may  be  that  the  cases 
which  they  respectively  state,  cannot  all  be  true.  So  a  defendant 
is  allowed,  under  the  provisions  of  the  statute  of  Anne,  to  plead, 

4.  Code,  §  3264,  provides  as  follows: 

"The  defendant  in  any  action  may  plead  as  many  several  matters, 
whether  of  law  or  fact,  as  he  shall  think  necessary,  and  he  may 
file  pleas  in  bar  at  the  same  time  with  pleas  in  abatement,  or  within 
a  reasonable  time  thereafter,  but  the  issues  on  the  pleas  in  abate- 
ment shall  be  first  tried." 


1016  CONCLUSION  §  516 

with  scarcely  any  exception,  matters  directly  inconsistent  with 
each  other,  for  example,  he  may  plead,  in  trespass  for  assault  and 
battery,  not  guilty  (namely,  that  he  did  not  commit  the  trespass), 
and  also,  son  assault  demesne,  viz,  that  he  committed  them  in  self- 
defence  or,  in  debt  on  bond,  non  est  factum  (viz,  that  he  did  not 
execute  the  deed),  and  also,  that  he  executed  it  under  duress  of 
imprisonment.  Again,  a  party  is  not  restrained  by  the  present  sys- 
tem, from  adding  to  his  true  case,  another  that,  though  consistent 
with  it,  he  knows  to  be  false.  And,  accordingly,  a  defendant,  at 
the  same  time  that  he  pleads  a  special  plea  founded  on  his  real 
matter  of  defence,  almost  always  resorts  also  to  the  general  issue. 
or  some  other  plea  by  way  of  traverse,  in  order  to  put  the  plain- 
tiff to  the  proof  of  his  declaration,  without  having,  in  truth,  the 
least  reason  to  deny  the  allegations  which  it  contains.  The  statute 
of  Anne,  indeed,  provides  a  check  against  this,  by  a  provision  of 
which  the  general  effect  is  as  follows :  that,  where  the  defendant 
has  pleaded  several  pleas,  \and  the  issue  upon  any  one  of  them,  is 
found  for  the  plaintiff,  the  court  may  give  the  plaintiff  the  costs 
of  every  such  issue,  unless  the  judge  of  nisi  prius  shall  certify 
that  the  defendant  had  probable  cause  to  plead  the  matter  found 
against  him.  But  the  construction  and  effect  given  to  this  pro- 
vision, in  practice,  seem  to  have  rendered  it  inadequate  to  the 
object  which  it  contemplates. 

3.  Another  feature  of  doubtful  character,  in  the  system  of 
pleading,  is  the  wide  effect  which  belongs,  in  certain  actions,  to 
the  general  issue?  In  debt  on  simple  contract,  in  assumpsit, 
and  trespass  on  the  case  in  general,  the  general  issue  em- 
braces almost  every  ground  of  defence  to  which  the  defendant, 
at  the  trial,  may  choose  to  resort;  the  questions  offered  by 
these  issues,  being,  in  effect,  nearly  these,  whether  the  defend- 
ant be  indebted  to  the  plaintiff,  as  alleged  in  the  declara- 

5.  This  difficulty  is  met  in  Virginia  by  Code,  §  3249,  which  is  as 
follows: 

"In  any  action  or  motion,  the  court  may  order  a  statement  to  be 
filed  of  the  particulars  of  the  claim,  or  of  the  ground  of  defence; 
and,  if  a  party  fail  to  comply  with  such  order,  may,  when  the  case 
is  tried  or  heard,  exclude  evidence  of  any  matter  not  described  in 
the  notice,  declaration,  or  other  pleading  of  such  party,  so 
plainly  as  to  give  the  adverse  party  notice  of  its  character." 


§    516  MERITS  OF  SYSTEM  1017 

tion,  or  whether  he  be  liable  to  the  plaintiff's  demand,  as  set 
forth  in  the  declaration.  Now,  these  questions  are  so  general 
and  vague  as  to  produce,  but  in  a  limited  and  inferior  degree, 
the  advantages  which  attend  the  production  of  a  more  strict  and 
special  issue.  For,  first,  they  do  not  fully  effect  the  separation 
of  matter  of  fact  from  matter  of  law.  To  understand  this,  it 
must  be  considered  that,  though  the  parties  cannot  go  to  trial  on  a 
mere  question  of  law  (a  traverse  of  matter  of  law  not  being  al- 
lowable), yet  it  is,  in  the  nature  of  many  issues  in  fact,  to  involve 
some  subordinate  legal  question,  the  decision  of  which  is  essential 
to  the  decision  of  the  issue.  And  the  wider  and  more  general  the 
form  of  the  issue,  the  more  likely  it  is  to  comprise  these  subordi- 
nate questions  of  law.  For  example :  In  an  action  of  debt  on  sim- 
ple contract,  or  assumpsit,  if  the  defendant  rely  on  a  lease  execu- 
ted by  the  plaintiff,  he  may  give  this  in  evidence  under  the  general 
issue  (nil  debet,  or  non  assumpsit),  because  it  tends  to  show 
that  he  is  not  indebted,  or  is  not  liable,  as  alleged  and,  if  the 
plaintiff's  answer  to  the  release,  be,  that  it  was  obtained  by  duress, 
this  will,  of  course,  be  also  offered  in  evidence  under  the  same 
issue.  Upon  this  point  of  duress,  two  questions  may  be  sup- 
posed to  arise,  first,  whether  the  execution  of  the  deed  under 
duress,  would  defeat  the  effect  of  the  deed,  secondly,  whether 
the  deed  were,  in  fact,  executed  under  duress.  Before  the  jury 
can  find  a  verdict  either  for  the  plaintiff  or  defendant,  both  these 
questions  must  be  disposed  of.  But  the  first  is  a  question  of  mere 
law,  and  their  decision  upon  it,  must  be  guided  by  the  direction 
of  the  judge.  Here  then,  is  a  question  of  law  involved  under 
the  issue  in  fact.  Now,  if,  on  the  other  hand,  a  form  of  action 
be  supposed,  in  which  the  pleading  is  more  special,  and  the 
general  issue  less  comprehensive,  for  example,  the  action  of  cove- 
nant, this  very  same  question  will  be  distinctly  developed,  as  a 
point  of  law,  upon  the  pleading  by  way  of  demurrer.  For  the  de- 
fendant cannot,  under  non  est  factum  (which  is  the  general  issue 
in  that  action),  set  up  the  release,  but  must  plead  it  specially,  and 
the  plaintiff  must,  consequently,  plead  the  duress  in  reply;  and, 
then,  if  the  defendant  disputes  the  legal  consequence  of  the  duress, 
his  course  is  to  demur  to  the  replication.  Of  such  demurrer,  oc- 
curring in  the  very  case  here  imagined,  the  reader  has  already 


1018  CONCLUSION  §    516 

seen  an  example  in  the  course  of  this  work  and  to  this  he  may  be 
again  referred,  for  further  illustration. 

It  thus  appears,  then,  that  it  is  the  effect  of  the  wider  general 
issues  to  render  less  complete,  than  it  otherwise  would  be,  the 
separation  of  fact  from  law.  And  the  inconvenience  of  this  is 
felt,  in  the  great  frequency  with  which  difficult  legal  questions 
arise  for  the  opinion  of  the  judge  at  nisi  prius,  the  numerous  mo- 
tions for  new  trials  consequently  made  in  the  court  in  bank,  to 
obtain  a  revision  of  such  opinions,  and  the  delay  and  expense 
necessarily  attendant  on  a  proceeding  of  this  kind,  when  com- 
pared with  the  regular  method  of  demurrer. 

#  *  *  *  * 

Again,  it  is  an  inconvenience  arising  from  general  issues  of 
this  description,  that  they  tend  to  conceal  from  each  party,  the 
case  meant  to  be  made  by  his  adversary,  at  the  trial.6  Thus,  in 
the  instance  above  supposed,  the  plaintiff  would  have  no  notice 
from  the  nature  of  the  issue,  nil  debet  or  non  assumpsit,  that  the 
defendant  meant  to  set  up  a  release,  nor  would  the  defendant, 
on  the  other  hand,  have  any  intimation  that  it  was  to  be  met  by 
the  allegation  of  duress.  And  thus  is  defeated,  in  some  measure, 
another  of  the  advantages  otherwise  attendant  on  the  produc- 
tion of  an  issue — viz,  that  of  apprising  the  parties  of  the  precise 
nature  of  the  question  to  be  tried,  and  enabling  them  to  shape 
their  proofs  without  danger  of  redundance  on  the  one  hand,  or 
deficiency  on  the  other. 

Another  objection  to  the  system  of  pleading,  and  one  more 
formidable,  perhaps,  than  any  that  has  been  above  suggested, 
is  to  be  found  in  the  excessive  subtlety,  and  needless  precision, 
by  which  some  parts  of  it  are  characterized.7  The  existence 
of  these  faults  cannot  fairly  be  denied,  nor  that  they  bring  upon 
suitors,  the  frequent  necessity  of  expensive  amendments,  and 
sometimes  occasion  an  absolute  failure  of  justice  upon  points 
of  mere  form.  Yet  is  their  inconvenience  less  severely  felt  in 
practice,  at  the  present  day,  than  a  mere  theoretical  acquaintance 

6.  This  objection  is  met  in  Virginia  by  provision  of  §  3249  of  the 
Code,  which  is  copied  on  page  1016. 

7.  This  objection  is  met  in  Virginia  by  the  provisions  of  §§  3245, 
3246,  3272,  hereinbefore  quoted  in  the  notes. 


§  516  MERITS  OF  SYSTEM  1019 

with  the  subject,  would  lead  the  student  to  suppose.  Many  of 
the  intricacies  and  mysteries  of  pleading, — those,  for  example, 
which  relate  to  color,  and  special  traverses,  long  discouraged  by 
the  courts,  are  rapidly  falling  into  disuse,  and,  on  the  whole, 
have  but  little  effect  in  the  actual  operation  of  the  system;  and, 
with  respect  to  the  science  in  general,  it  may  be  remarked,  that 
its  increasing  cultivation  has  made  the  course  of  practice  more 
uniformly  correct  than  in  former  times,  and  the  occasions  for 
formal  objection,  considerably  less  frequent. 


APPENDIX 


In  preparing  the  copy  for  the  printer,  the  following  section 
was  accidentally  dropped  out : 

§  283a.    Rejection  of  pleas. 

In  Virginia  it  is  held  that  if  a  plea  is  offered  and  rejected,  or 
if  it  has  been  filed  and  has  afterwards  been  stricken  out,  in  either 
case  a  bill  of  exception  is  necessary  to  enable  the  appellate  court 
to  review  the  ruling  of  the  trial  court.  It  is  said  that  when 
stricken  out,  it  is  as  if  it  had  never  been  filed  unless  made  a  part 
of  the  record  by  a  bill  of  exception.1  In  West  Virginia  it  is  pro- 
vided by  statute  that  "When  a  plea  is  offered  in  any  action  or 
suit,  which  is  not  sufficient  in  law  to  constitute  a  defense  therein, 
the  plaintiff  may  object  to  the  filing  thereof  on  that  ground,  and 
the  same  shall  be  rejected.  But  if  the  court  overrule  the  objec- 
tion and  allow  the  plea  to  be  filed,  the  plaintiff  may  take  issue 
thereon  without  losing  the  benefit  of  the  objection,  and  may,  on 
appeal  from  a  judgment  rendered  in  the  case  in  favor  of  the  de- 
fendant, avail  himself  of  the  error  committed  in  allowing  such 
plea  to  be  filed,  without  excepting  to  the  decision  of  the  court 
thereon."2  And  if  error  is  committed  in  refusing  to  permit  a 
plea  to  be  filed  no  formal  bill  of  exception  is  necessary  if  the 
order  book  of  the  court  expressly  states  that  the  defendant  ex- 
cepted  to  the  ruling  of  the  trial  court  in  rejecting  the  plea.3  In 
Georgia  if  the  plea  has  once  been  filed,  and  is  afterwards  stricken 
out,  it  is  regarded  as  still  so  far  a  part  of  the  record  that  no  bill 
of  exception  is  deemed  necessary.4  It  will  be  observed,  however, 
in  reading  the  last  mentioned  case,  that  the  plea  was  not  stricken 
out  on  motion,  but  that  a  demurrer  thereto  was  sustained.  Of 
course  no  bill  of  exception  was  necessary  in  such  a  case,  as  the 
demurrer  was  a  part  of  the  record,  and  a  bill  of  exception  is 
never  necessary  to  review  the  ruling  of  a  court  on  demurrer.5 
If  an  assignment  of  error  may  be  affected  by  extraneous  evidence 
there  must  be  an  exception,  or  bill  of  exception.6 

1.  Fry  v.  Leslie,  87  Va.  269,  12  S.  E.  671. 

2.  W.  Va.  Code,  §  3876. 

3.  Sweeney  v.  Baker,  13  W.  Va.  at  page  215. 

4.  McCall  v.   Herring,   116   Ga.   235,   42   S.   E.   468. 

5.  Russell  Creek  Coal  Co.  v.  Wells,  96  Va.  416,  31  S.  E.  614. 

6.  Swann  v.  Washington,  etc.,  Co.,  108  Va.  282,  61  S.   E.  750. 


INDEX 

[References  are  to  pages.] 


ABATEMENT  AND  REVIVAL 

Process,  defendant  returned  non-resident,  abatement,  257. 

Abatement  in  cases  of  misjoinder  of  parties,  76,  257,  347. 

No  abatement  for  want  of  form  when,  345. 

Revival  of  actions,  see  Parties. 

Survival  of  tort  actions,  see  Parties. 

See  also,  Attachments,  Demurrer,  Limitation  of  Actions. 

ACCORD  AND  SATISFACTION 

Introductory,  16. 
Definition,   16. 
Effect  of,  16. 
Subject  matter,  16-17. 

Simple  contract  debts,  16-17. 
Judgments,  17. 
Obligations   under    seal,    17. 
Torts,  17. 

Title  to  freehold,  17. 
Accord   without   satisfaction,    17. 

.  Necessity  for  performance  of  thing  agreed,  17. 
Time  of  performance,  17. 
Part  performance,   readiness,  tender,   17. 
Persons  who  may  make  satisfaction,  18-19. 
Parties,  18. 
Strangers,  18. 
One  of  several  joint  wrong-doers,  18-19. 

Effect  of  complete  satisfaction  by,  18-19. 
Effect  of  release  under  seal  or  expressing  full  satisfac- 
tion,  18-19. 

Effect  of  settlement  with  in  proper  manner,  18-19. 
Effect  of  covenant  not  to  sue,  19. 
Apportionment  of  wrong,  18-19. 
Effect  of  judgment  against,   19. 
With   satisfaction,   19. 
Without  satisfaction,  19. 
Joint  obligors,  19. 

Effect  of  release  of  one,   19. 
Satisfaction  to  one  joint  obligee,  effect  of,  19. 


1022  INDEX 

[References  are  to  pages.] 
ACCORD  AND   SATISFACTION— Cont'd. 
Consideration  of  accord,  20-21. 

Part  payment   of  a  liquidated  money   demand,  20. 
At  common  law,  20. 
Now,  20. 

New  or  additional  consideration,  20. 
Unliquidated  or  disputed   claims,  20. 
Acceptance   of  property  or   services,  20-21. 
Acceptance  oi  a  promise,  21. 
How  pleaded,  21. 
Requisites  of  plea  of,   21. 
Showing  under  nil  debet,  see  Debt,  Action  of. 

ACCOUNT 

Nature  of  action  and  general  rules  applicable  thereto,  185-186. 

Founded   on   contract,   185. 

Its  ancient  employment  and  object,   185. 

Technical,  dilatory  and  unsatisfactory,  185. 

Procedure  in,  185. 

Obsolete,    185-186. 

Virginia   statute  allowing,   185-186. 
Construction    of,    186. 

Declaration,  nature  and  form,  186. 

Theory  of  the  action,  186. 

Judgment  in,  186. 
Superseded  by  bill  in  equity,  186. 

Equitable  remedy  preferable,   186. 

Equitable    remedy,   applicability   of,    186. 
See  Payment. 

ACCOUNT,  ACTION  OF 

See  Account. 

ACCOUNT   STATED 

See   Limitation   of  Actions. 

ACKNOWLEDGMENT 

See  Justices  of  the  Peace. 

ACTION 

Classification    of   actions,    77-78. 
Real  actions,  77. 
Mixed  actions,  77. 
Personal   actions,   77. 
Local    and    transitory    actions,    77-78. 
Actions  ex  contractu  and  ex  delicto,  78. 
'How   actions   are   instituted,   286-289,   291-292. 


INDEX  1023 

[References  are  to  pages.] 

ACTION— Cont'd. 

Test  of  whether  action  is  for  tort  or  contract,  395-396. 

When  in  personam  and  when  in  rem,  305. 

When  action  deemed  commenced,  400. 

For  general  discussion  of  joinder  of  actions,  see  Pleading  (Rules 
of  Pleading),  and  pp.  900-901. 

Assumpsit,  covenant,  debt  and  motions  contrasted,  see  Assumpsit, 
Action  of. 

Comparison  of  Unlawful  Entry  and  Detainer  with  Trespass,  see 
Unlawful  Entry  and  Detainer. 

Detinue  compared  with  replevin,  see  Detinue. 

Difference  between  malicious  prosecution  and  false  imprison- 
ment, see  Malicious  Prosecution. 

Difference  between  trespass  to  try  title  and  trespass  quare  clau- 
sum  fregit,  see  Trespass. 

Difference  between  trover  and  conversion  and  trespass,  see  Tro- 
ver and  Conversion. 

Distinction  between  trespass  and  case,  see  Trespass. 

False  imprisonment  compared  with  malicious  prosecution,  see 
False  Imprisonment. 

Form  of  as  determining  whether  cause  of  action  in  tort  or  con- 
tract, see  Parties. 

Form  of,  to  recover  for  death  by  wrongful  act,  see  Death,  Action 
on  the  Case,  Trespass. 

Joinder  of  common  law  and  statutory  slander,  see  Libel  and  Slan- 
der. 

Joinder  of  counts  in  trespass  for  seduction,  see  Trespass. 

Joinder  of  false  imprisonment,  slander,  libel,  and  malicious  pros- 
ecution, see  False  Imprisonment. 

Interpleader  as  substitute  for  Replevin,  see  Interpleader. 

Misjoinder  of  tort  and  assumpsit,  see  Assumpsit,  Action  of. 

Real  action,  see  Unlawful  Entry  and  Detainer. 

Trespass  de  bonis  asportatis  compared  with   trover,  see   Trespass. 

Trespass  practically  superseded  by  case,  see  Action  on  the  Case 

Trespass  to  try  title  as  superseding  ejectment,  see   Trespass. 

Survival  of,  see  Parties. 

When  trespass  concurrent  with  case,  see  Trespass. 

See  also,  Attachments,  Demurrer,  Limitation  of  Actions,  Process. 

ACTION  ON  THE  CASE 

Use  of  to  recover  statutory  penalties,  89-91. 

To  recover  damages  for  violation  of  statute,  90-91. 

Generally  called  "case,"  225. 

Distinction   between   trespass   and   case,  225-227. 

Has  practically   superseded   trespass,   227. 

For  false  imprisonment,  230-231. 


1024  INDEX 

[References  are  to  pages.] 
ACTION  ON  THE  CASE— Cont'd. 

To  recover  for  death  by  wrongful  act,  231. 
Species  of  trespass  on  the  case  ex  delicto,  231-232. 
Assumpsit  as,  231. 
General    subdivision,    231-232. 

Trespass  on  the  case  generally,  232. 

Its  use   and  scope,  232. 
Trover  and  conversion,  232. 
Slander,  232. 
Libel,  232. 

General  issue,  232,  852-854. 
Form,  232,  849. 

Nature,  scope,  and  defences  provable  under,  232,  852-854. 
Form  of  memorandum   in,  289. 

See    Death,    False    Imprisonment,    Malicious    Prosecution,    Process, 
Trespass,  Trover  and  Conversion. 

ADVERSE  POSSESSION 

See  Ejectment,  Limitation  of  Actions,  Trespass. 

AFFIDAVITS 

Filed  with  plea  of  nil  debet,  see  Debt,  Action  of. 
See  also,  Appeal  and   Error,  Attachments,    Continuance,   Justices   of 
the  Peace,  Mechanics'  Liens,  Pleading,  Process. 

ALIENS 

Right   of   representative   of   non-resident   to    sue   for   death,    see 
Death. 

AMENDMENTS 

See  Attachments,  Pleading,  and  other  specific  titles. 

APPEAL  AND  ERROR 

Difference  between  writs  of  error  and  appeals,  735-736. 
Appeals,  735. 

Nature  of  as  a  hearing  de  novo  of  cause,  735. 
Presumptions  on,  735. 

Meaning  of   terms   appellant   and   appellee,  735. 
Writs  of  error,  735. 

Nature   of  as  new  suit,   735. 

How   awarded,   its    effect,   judgment   of   appellate   court, 

735. 

As  review  of  law  or  of  fact,  735. 
Consideration   given  to  verdict   of  jury  on,  735. 

To  judgment  of  trial  court  on  question  of  fact,  735. 
Meaning   of    terms    plaintiff    in    error    and    defendant    in 
error,  735. 


INDEX  1025 

[References  are  to  pages.] 
APPEAL    AND    ERROR— Cdnt'd. 

Difference  between  writs  of  error  and  appeals — Cont'd. 
Supersedeas,   735-736. 

Always  ancillary  process  in  Virginia,  735-736. 
Its   mandate    and   effect,   735-736. 
Not   substitute  for  writ  of  error,  736. 
Not  necessary  to  appeal  or  writ  of  error,  736. 
Form  of  writ  of  error  and  supersedeas,  736. 
Course  of  appeal  in  Virginia,  737. 

Appeal  from  circuit  to  corporation  court,  or  vice  versa,  737. 
State   Corporation   Commission,  appeals  from,  where  cogni- 
zable, 48. 

Errors  to  be  corrected  in  trial  court,  737-738. 
Judgment  confessed,  no  appeal  on,  737. 
Effect  of  statute  of  jeofails  on  errors,  737. 
Power  of  court  or  judge  to  correct  clerical  errors  or  those 

of  fact,  737. 

Judgment  by  default,  power  of  court  or  judge  over,  737. 
Judgment    not   by   default   when    something   appears    in    the 

record  by  which  amendment  can  be  made,  737-738. 
Release  of  part  of  recovery  by  party,  effect,  737-738. 
Motion  for  correction,  form  of  and  time  for,  738. 
Errors  of  judgment,  738. 

When  curative  nunc  pro  tune  order  may  be  entered,  738. 
When  no  appeal  unless  motion  for  correction  made  in  trial 

court,   738. 
Course  pursued  by  appellate  court  when  judgment  has  been, 

or   should  have  been,  so  amended  in  trial   court,  738. 
When  court  of  appeals  can  correct  clerical  errors  in  its  own  de- 
crees, 738. 

Jurisdiction  of  the  court  of  appeals  of  Virginia,  738-745. 
Constitutional    and    statutory    provisions,    739-741. 
Original   jurisdiction,   738-741. 

Mandamus,  prohibition  and  habeas  corpus,  741. 
None  in  cases  of  quo  warranto,  741. 
Amount   in   controversy   immaterial,   741. 
Provisions  of  present  constitution  as  self  executing,  741. 
Rule  of  court  as  to  application  for  a  mandamus  or  pro- 
hibition,  741-742. 
Appellate  jurisdiction,  742-745. 

Matters  not  merely  pecuniary,  742-744. 

Amount  in  controversy  immaterial,  742. 

What  matters  embraced  under  this  heading,  742. 

No  direct  appeal  from  judgment  of  justice  involving 

constitutionality    of   a    law,    742,    48. 
—65 


1026  INDEX 

[References  are  to  pages.] 

APPEAL  AND   ERROR— Cont'd. 

Jurisdiction  of  the  court  of  appeals  of  Virginia — Cont'd. 
Appellate  jurisdiction — Cont'd. 

Matters  not  merely  pecuniary — Cont'd. 

Controversies  concerning  the  condemnation  of 
property,  right  of  legislature  to  limit  appeal  to 
question  of  damages,  743. 

Jurisdictional  matter  must  not  be  incidental  or  col- 
lateral,  743. 
Jurisdiction    must   affirmatively   appear   from   record, 

743. 
Does    so   appear  where    constitutionality   of   law 

necessarily  involved,   743. 
Constitutional  question  must  be  raised  in  trial  court, 

348,   743. 

Construction  of  statute  as  distinguished  from  con- 
stitutionality, 743-744. 

In  cases  of  unlawful  entry  and  detainer,  744. 
Where   validity  of  deed   of  trust   securing  less   than 

$300  assailed,   744. 

Subjecting  land  to  judgment  for  less  than  $300,  744. 
Right   of   state  to   impose   a   tax   or  to   subject   land 

thereto,  744. 

Mandamus   and   prohibition,   744. 
Necessity  for  final  judgment  in  trial  court,  744. 

West   Virginia   rule,   744. 
Matters  pecuniary,  744-745. 
Jurisdictional  amount,  744. 
How  far  interest  taken  into  account  in  ascertaining 

jurisdiction,  744-745. 
Amount    in    controversy,   745-751. 
Virginia  doctrine,   745-748. 

Constitutional    provision    for    appeal    not    self-executing, 

745. 

As   equivalent  to  "matter  in   dispute,"  745. 
Meaning  of  phrase,  745. 
Where   the   plaintiff  appeals,   745-748. 

As    determined    by    amount    claimed    in    declaration, 

745-746. 

Difference  between  amount  claimed  and  amount  re- 
covered, 746-747. 

Where  defendant  allowed  a  set-off,  747. 
Necessity   for    objection    to    amount    of    recovery   in 
trial  court,  747-748. 


INDEX  1027 

[References  are  to  pages.] 

APPEAL  AND   ERROR— Cont'd. 
Amount  in  controversy — Cont'd. 
Virginia   doctrine — Cont'd. 

Where  the   defendant   appeals,  745,  747. 

Amount  of  judgment  at  its  date  as  determining,  745. 
Where  the  defendant  claims  a  set-off,  747. 
West   Virginia   doctrine,   748-749. 

Where  the  plaintiff  appeals,   748. 

As  amount  really  claimed,   how  ascertained,   748. 
As  amount  claimed  in   declaration  or  bill,  748. 
As  amount  claimed  in   summons,  748. 
Where  the  defendant  appeals,  748-749. 

As  amount  claimed  in  plea,  answer  or  set-off,  748. 
As  amount  of  judgment  against  him,  748,  146,  359. 
As  amount  of  set-off  wholly  disallowed,  748-749. 
United  States  doctrine,  749. 

Where   the   plaintiff  appeals,   749. 

Difference    between    amount    claimed    and   judgment 

rendered,   749. 

Amount    must   be    claimed   in   body   of   declara- 
tion, 749. 

Where  counter  claim  set  up  by  defendant,  749. 
Where  the   defendant  appeals,  749. 

As  amount  of  judgment  against  him,  749. 
Where   counter   claim   set   up   by   him,   749. 
Real  difference  between  claim  and  recovery  the  test,  749. 
General   doctrine,   749-750. 

Conflict  in  decisions,  749. 

Doctrine    adopting    as    test    amount    claimed    in    lower 

court,    749. 

Doctrine  adopting  as  test  amount  of  recovery,   749-750. 
Rule   on  principle,   749-750. 
Burden  of  proof  as  to,  750. 

When  may  be  shown  by  affidavits  in  appellate  court,  750. 
Change  in  jurisdictional  amount,  which  law  governs  right  of 

appeal,   750-751. 
Aggregate  of  several   claims,  751. 

Effect  of  as  to  plaintiffs  who  have   no  joint  interest  or 

community    of    interest,    751. 
Claims  of  legatees  against  an  executor,  751. 
Claims   against   legatees   or   devisees,   751. 
Cross-error  by  defendant  in   error,   751-753. 

Reversal  of  proceedings  on  behalf  of  appellee  or  defendant 

in  error,  751-752. 
Right  to  assign  as  to  any  part  of  record,  752. 


1028  INDEX 

[References  are  to  pages.] 

APPEAL  AND   ERROR— Cont'd. 

Cross-error  by  defendant  in  error — Cont'd. 

Jurisdictional   amount  as  affecting,  752. 
Effect  of  accrual  of  interest,  752. 

Right  of  plaintiff  to  assign  where  both  parties  appeal,  752. 

Assigning  moot  questions  on,  752-753. 
Collateral     effect     of     judgment     as     determining     Jurisdictional 

amount,  753. 
Release  of  part  of  recovery,  753-754. 

Right  to  where  effect  would  be  to  defeat  appeal,  753-754. 

Effect  of  release  after  judgment,  754. 
Reality  of  controversy,  754. 

Necessity  for,  754. 

Moot  questions,   754. 

Agreement  of  counsel  as  affecting,  754. 
Who  may  apply  for  a  writ  of  error,  754-755. 

Aggrieved  party  to   cause,  754. 

Name  must  appear  in  petition,  754-755. 

Application   in  name  of  dead  man,  755. 

Must  be  party  on  whom  to  serve  process,  755. 

Procedure  where  plaintiff  in  trial  court  dies  after  judgment 
and  defendant  wishes  to  appeal,  755. 

Commissioner   of  court,  755. 

One  of  several  jointly  bound,  755. 

Surety,  when   defence  personal  to  principal,  755. 

Commonwealth    from    decision    of    State    Corporation    Com- 
mission, 48. 
Time  within  which  writ  of  error  must  be  applied  for,  740-741,  756. 

One  year  from  actual  date  of  final  judgment,  740-741,  756. 

Time  for  giving  bond,  756. 

Appeal  from  decree  refusing  bill  of  review,  740-741,  756. 

Time   excluded   from   computation,   756. 

Dismissal   as   improvidently   awarded,   756. 

Plea  of  statute  unnecessary,  756. 
Application  for  writ  of  error,  757-760. 

Transcript    of   record,    how   obtained,    757. 

Making  up  the  transcript,  agreeing  the  facts,  757. 

The  petition  and  certificate  of  counsel  thereto,  757. 

Transmission   of  petition   to   judge   of   appellate    court,   pro- 
cedure, 757. 

Presenting  petition  to  court  in  term,  757-758. 

Superseded*,  when  granted,  758. 

Bond,  when   required   of  plaintiff  in   error,   758. 


INDEX  1029 

[References  are  to  pages.] 

APPEAL  AND   ERROR— Cont'd. 

Application  for  writ  of  error — Cont'd. 

Suspending  order   in   trial    court  pending  petition,   758. 
Time   for   requesting,   758. 
Bond    required    of   applicant,    its   penalty    and    condition, 

758. 

What  comprises  the  record  in  a  common  law  action,  758. 
Mere  filing  of  papers  does  not  make  them  part  of,  758. 
Sources  of  information  as  to  what  constitutes,  758. 
Power  of  court  of  appeals  to  have  defects  in  record  cured 

in   trial   court,  759. 

Petition  as  a  pleading,  necessity  for  assigning  errors  in,  759. 
Notice  to  counsel,  necessity  for  an  application  for  transcript, 

757,   759. 

Statute    requiring   directory,   759. 
Form  of  notice,  certificate  of  clerk,  759-760. 
Length  of  notice,  760. 
To  what  counsel  given,  760. 
Bond  of  the  plaintiff  in  error,  760. 

Condition  of  where  no  supersedeas  awarded,  760. 
Condition  of  where  supersedeas  awarded,  760. 
By    whom    given,    how    penalty    fixed,    760. 
Dismissal  of  writ  of  error  for  failure  to  give  or  for  informal- 
ity in,  760. 

Effect  of  such   dismissal,  760. 

Informalities  in,  correction  of  in  appellate   court,  760. 
Rule  of  decision,  760-764. 

Where  verdict  or  judgment  claimed  to  be  contrary  to  evi- 
dence, 760-761. 

Where  facts  are   certified,  presumptions,   761. 
When  facts  should  be  certified,  form  of  certificate,  761. 
Where  the  evidence  is   certified,  presumptions,  761. 

Judgment  sustaining  verdict  on  conflicting  evidence, 

761. 

Judgment    setting   aside    verdict    on    conflicting   evi- 
dence, 761. 
What  is  meant  by  going  up  as  on  demurrer  to  evidence, 

761-762. 
What  judgment  entered  where  trial  court  reversed, 

761-762. 
Two  trials  in  lower  court,  rule  as  to  looking  first  to  initial 

trial,    762-763. 

First  trial  not  looked  to  as  on  demurrer  to  evidence,  762. 
Second  trial  looked  at  as  on  demurrer  to  evidence,  762. 
Rule  where  there  have  been  three  trials  in  lower  court,  763. 


1030  INDEX 

[References  are  to  pages.] 

APPEAL  AND   ERROR— Cont'd. 
Rule  of  decision — Cont'd. 

Allowances  made  for  discretion  of  trial  court  as  to  new  tri- 
als, 763-764. 
Difference   of  viewpoint   as   depending  on   whether   new 

trial  granted  or  refused,  764. 
Effect  of  failure  to  make  motion  for  new  trial  in  lower  court, 

764. 
Judgment    of   appellate    court,    764-769. 

On   demurrers   in   lower   court,   764-767. 

Where  there  -is  an  affirmance  of  an  order  sustaining  a  de- 
murrer  to    declaration   because   it   fails    to   state   a 
case,   764. 
Whether    new    action    can    be    maintained    for    same 

cause,   764-765. 
Where  demurrer  for  misjoinder  improperly  overruled  by 

trial  court,  765. 

Where  demurrer  to  declaration  improperly  overruled 
below  and  trial  resulted  in  judgment  for  plaintiff, 
765. 

When  case  remanded  with  liberty  to  amend,  765. 
When  final  judgment  entered  up  for  defendant,  765- 

766. 

When  presumed  that  plaintiff  has  stated  his  case  as 
strongly  as  possible,  and  final  judgment  entered 
against  him,  765-766. 

Where  no  demurrer,  or  general  demurrer,  to  declaration 
containing  one  good  count,  and  entire  damages  found, 
766. 

Where  demurrer  to  each  count  overruled  and  court  can 
see    whether    verdict    founded    on    good    or    bad 
count,   766. 
Where    court    cannot    see    on    which    count    verdict 

founded,  766. 

Where  case  reversed  for  failure  of  trial  court  to  sus- 
tain demurrer  to  any  pleading  subsequent  to  declara- 
tion, 766-767. 

Where    demurrer   to   evidence   in    lower   court,   767. 
When    final   judgment    will    be    entered,    767. 
When   demurrer   should  have  been   overruled   as  to   cer- 
tain  items    readily   ascertainable    from    record,    767. 
Where   case  heard  by  trial  judge  without  a  jury,   767. 
Final   judgment,   and   not   new   trial,    the    rule,   767. 
Weight   given  judgment  of  lower  court,  767. 
Where  jury  trial   in  lower  court,  767-768. 


INDEX  1031 

[References  are  to  pages.] 

APPEAL  AND   ERROR— Cont'd. 

Judgment   of   appellate   court — Cont'd. 
Divided   court,   768-769. 

When  equal  division  constitutes  an  affirmance,  768. 
Extent  of  concurrence  necessary  on  constitutional  ques- 
tion, 768. 

Effect  of  equal  division  on  question  of  jurisdiction,  768. 
Decision   by  as   a  precedent,   769. 

West  Virginia  rule,  769. 
Change  in  law,  which  law  will  control  decision  of  appellate  court, 

769. 

Prospective   operation   of  merely   remedial   statute,   769. 
How  decision  of  appellate  court  certified  and  enforced,  769. 
Finality  of  decision  of  appellate  court,  power  to  correct,  770. 
Rehearing  in  appellate  court,  770. 

Within  what  time  application  for  must  be  made,  770. 
Form  and  essentials  of  application  for,  770. 
When  granted,  770. 
Objections  not  made  in  trial  court,  770,  772. 

Necessity  that  record  disclose  errors,  770,  771. 
Necessity  for  objection  in  trial  court,  in  general,  770,  771. 
Objections  for  the  first  time  in  appellate  court,  effect,  771. 
Objection    that    trial    court   had    no   jurisdiction    of   sub- 
ject matter,  771. 

When  appellate  court  has  no  jurisdiction,  771,  772. 
Objections   must  be  properly  presented  in  record,  772. 

When  necessary  to  make  instructions  part  of  record,  772. 
Putting  a  party  upon  terms,  772-773. 

By  appellate  court  because  judgment  in  his  favor  excessive, 

procedure,  772-773. 
Remission  under  protest  in  trial   court  of  part  of  recovery, 

effect  on  right  of  appeal,  773. 

Right  to  assign  cross-error  on  appeal  by  defendant,  773. 
Jurisdictional  amount  as  affecting  review  in  such   cases, 

773. 

Appeals   of   right  are   unknown   in  Virginia,   773-774. 
Refusal    or    dismissal    of   writ    of    error    as    affirmance    of    lower 

court,   774. 

Only   material  and  prejudicial   errors   are   subject   to   review,   774. 
See  Attachments,  Demurrer,  Demurrer   to   Evidence,  Justices   of  the 
Peace,  Limitation  of  Actions,  Motions  After  Verdict,  New  Trial, 
Quo  Warranto,  Trial,  Unlawful  Entry  and  Detainer,  Verdicts. 

APPEALS 

See  Appeal  and  Error. 


1032  INDEX 

[References  are  to  pages.] 

APPEARANCE 

As  waiver  of  process,  292-293. 

As  waiver  of  defects  in  process  or  service,  305,  326. 

Special   for   objection    to   process,   326. 

Special  as  distinguished  from  general,  273,  326-327. 

See  Attachments,  Pleading,  Process,  Rules  and  Rule  Days. 

ARBITRATION  AND  AWARD 

Introduction,   22. 

Usual   number  of  arbitrators,  22. 

Definition  of  arbitrators,  22. 

Definition  of  "award,"  22. 
Who  may  submit,  22-23. 

In   general,  22. 

Fiduciaries   generally,   22-23. 

Infants,  22-23. 

Guardians,  23. 

Partners,  23. 

Attorneys  at  law,  23. 

Agents,  23. 
What  may  be  submitted,  23-24. 

Personal  demands,  23. 

Disputes    touching  land,   23-24. 

Crimes,  23. 

Matters  in  futuro,  24. 
Mode   of  submission,   24. 

Under  rule  of  court,  24. 

Agreement  in  pais,  24. 

Form  of  submission,  24. 
Who  may  be  arbitrator,  24-25. 

In  general,  24. 

Interest,  bias   or  relationship   of,  24-25. 

Idiots  or  lunatics,  24-25. 

Effect  of  refusal  of  one  arbitrator  to  act,  25. 
Arbitrators,  necessity  for  oath,  25. 
The  umpire,  25-26. 

Distinction  between  and  third  arbitrator,  25. 

How  this  distinction  determined,  25. 

Qualifications,  25. 

How  selected,  25-26. 

Must  hear  evidence,  26. 

Method  and  form  of  his  decision,  26. 
Revocation   of   submission,   26-27. 

When  submission  is  by  rule  of  court,  how,  26-27. 
At  common  law,  26-27. 
In  Virginia,  26-27. 


INDEX  1033 

[References  are  to  pages.] 

ARBITRATION  AND  AWARD— Cont'd. 
Revocation  of  submission — Confd. 

Submission  not  by  rule  of  court,  26-27. 

Remedy  for  wrongful   revocation,  26. 

Submission  as  bar  to  action  or  suit,  26. 

Specific  performance  of  agreement  to  submit,  26. 

Damages,  measure  of  for  breach  of  agreement  to  submit,  26. 

Form  and  character  of  revocation,  26-27. 

Implied  revocation,  27. 

Death  of  arbitrator  or  party,  27. . 
Bankruptcy  of  party,  27. 

Communication  of  express,  necessity  for,  27. 

Rights  of  sovereign  states,  27. 
Proceedings  before  arbitrators,  27-28. 

Nature  of,  27. 

Notice  to  parties,  27-28. 

Witnesses,  27-28. 

Arguments  of  counsel,  27. 

Rule  of  decision,  27-28. 

Presence  of  parties,  27-28. 

Admission   or  rejection   of  evidence,  27-28. 

Umpire,  hearing  of  case  de  novo  by,  28. 
The  award,  28. 

Scope  and  character,  28. 

Construction   of,  28. 

In  excess  of  submission,  28. 

Delivery  of,  28. 

When  final,  28. 

Uncertainty  in,  effect  of,  28. 

Powers   of  arbitrators   after,   28. 
Form  of  award,  29. 

Written,  necessity  for,  29. 
Effect  of  award,  29. 

As  a  bar  to  original  claim,  29. 

As  condition  precedent  in  contracts,  29. 
Mode  of  enforcing  performance  of  award,  29. 

When  entered  as  judgment  of  court,  29. 

In  other  cases,  29. 
Causes  for  setting  aside  award,  29-31. 

Improper  conduct  of  arbitrators,  29-30. 

Improper  conduct  of  parties,  30. 

Errors  apparent  on  face,  30. 

Right  to  review  testimony,  30. 

Mistake  of  law  or  fact,  30-31. 
Relief  against   erroneous  award,  31. 


1034  INDEX 

[References  are  to  pages.] 

ARBITRATION  AND  AWARD— Cont'd. 
Awards,  how  pleaded,  31. 

Under  the  general  issue,  when,  31. 

Special  plea,  when,  31. 

Proof  under  non-assumpsit,  31. 

When  made  in  pending  suit,   31. 
Agreement  to   submit,   how  pleaded,   31. 
Costs,  31-32. 

At  common-law,  31-32. 

At  present,  31-32. 

Showing  award   under  nil  debet,  see  Debt,  Action   of. 
Showing  agreement  to  submit  under  nil  debet,  see  Debt,  Action  of. 
Showing  submission  and  award  in  pending  suit  under  nil  debet, 
see  Debt,  Action  of. 

ARGUMENT  OF  COUNSEL 

See  Trial. 

ARREST  OF  JUDGMENT 

See  Motions  after  Verdict. 

ASSAULT  AND  BATTERY 

See  Trespass. 

ASSIGNMENTS 

See   Attachments,   Executions,   Homesteads,   Limitation   of  Actions, 
Mechanics'  Liens,  Parties,  Set-Off  and  Counterclaim. 

ASSUMPSIT,  ACTION  OF 

History  of  the  action  and  when  it  lies,  118-120. 

History  and  nature,  118-119. 

On   contracts  express  or  implied,   119. 

On  contracts  sealed  or  unsealed,  119. 

How  as  to  judgments,  119. 

Contrasted   with   covenant,  debt  and   motions,   119. 

Scope    of   action,    119. 

Its  equitable  nature,  119-120. 

Specific  instances  where  lies,  120. 

Against  grantee  not  signing  deed  poll,  106-107. 

To  recover  statutory  penalties,  90. 
When  assumpsit  does  not  lie,  120-121. 

In  general,  120. 

Illegal   contracts,   120,   121. 

Domestic  judgments,  121. 
Waiving  tort  and   suing  in  assumpsit,   121-124 

Reason  for  allowing,  121. 


INDEX  1035 

[References  are  to  pages.] 

ASSUMPSIT,  ACTION  OF— Cont'd. 

Waiving  tort  and  suing  in  assumpsit — Cont'd. 
The  rule  stated,  121. 

Implied   contract,  conclusive  presumption,  121. 
Tortious   taking  of   goods,   pleading,   121. 
Election   of   remedies,    121-122. 
Effect  of  bringing  assumpsit,  waiver,   122. 
Money  tortiously  taken,  pleading,  122. 
Against  trespasser  cutting  trees,  pleading,  122. 
Basis  of  fiction  of  implied  promise,  122. 
In  case  of  naked  trespass,  123. 
Tort  also  crime,  effect,  123. 
Interest    of    plaintiff,    what    necessary,    123. 
Rule  where  converted  property  used  not  sold,  123. 
Recovery,  limitations  of,   123-124. 
Election  of  remedy,  finality  of,  124. 
Of  general  and  special  assumpsit,  124-140. 
The  common   counts,   124-128. 

Nature  of  and  why  so  called,  124. 

Always   substitutional,   124. 

Reason  for  their  use,   124-125. 

Form  of  declaration  containing,  125. 

General   form  and   nature,   126. 

Common   breach   alleged,    126-127. 

Use  of  quantum  valebant  and  meruit  counts,  127. 

Declaration   should  generally  contain,   127-128. 

Recitals  in,  varied  for  different  cases,  128. 

Use  and  occupation  of  land,  128. 

Demurrer  to,   effect  of,  128. 
General  assumpsit  on  an  implied  liability,  129-131. 

Always  founded  on  implied  liability,  129. 

For  money  paid  to  another's  use,  129. 

For  money  had  and   received,   130. 

General  equitable   rule,  130. 

Privity,  necessity  of,  130. 

For  services  rendered,  130. 

Volunteer,  payment  by,  130. 

By  payee  of  check  against  bank,  130-131. 
Difference  between  general  and  special  assumpsit,  131-132. 

Erroneous  impression  as  to  special  contract,  131. 

General,  rests  upon  implied  legal  engagement,  131-132. 

General,  legal  measure  of  damages  recovered  in,  131-132. 

General,    express    contract    is    only    evidence    of   measure 
of  damages,  132. 

General,  not  founded  on  express  contract,  132. 

Special,    always   founded   on    express   promise,    131. 


1036  INDEX 

[References  are  to  pages.] 

ASSUMPSIT,  ACTION  OF— Cont'd. 

Of  general  and   special   assumpsit — Cont'd. 

Difference  between  general  and   special  assumpsit — Cont'd. 
General,  express  contract,  if  any,  governs  damages,  132. 
Special,  express  promise  fixes  measure  of  damages,  131. 
When  general  assumpsit  will  not  lie,  132. 

Special  contract  open  and  unperformed,  132. 
Special   contract  open,   damages  for  breach,   132. 
When   general   assumpsit  will   lie  though   there   has   been   a 
special  contract,  133-140. 

(1)  Special    contract   fully    executed,    133-134. 
Statement  of  rule,  133. 

Contract    must    be    for    money,    133. 
Bills,  notes,  and  other  instruments,   133-134. 
Where   obligation   of   defendant   is   collateral,   134. 
Reason    for    rule,    135. 

(2)  Special  contract  deviated  from  by  common  consent, 

134-135. 

Rule  stated,  134. 
Measure  of  damages,  134-135. 
Reason  for  rule,  135. 

(3)  Work  not  done  according  to  special  contract,  but  ac- 

cepted— Deviations,   135-136. 
Statement  of  rule,  135. 
Acceptance  of  work,  135. 
Silence  as  estoppel,  135. 
Theory  of  recovery,  135-136. 
Measure  of  recovery,  how  determined,  136. 
Necessity   for   request   or   knowledge,   privity,   136. 

(4)  Special    contract    partly    performed,    136-138. 
Rule    stated,-  136-137. 

Plaintiff  prevented   from   performance,   136-137. 
Reason  for  rule,   136-137. 
Measure  of  recovery,  137. 
Contract  abandoned  by  mutual  consent,  137. 
Money   paid   under    rescinded    contract,    137. 
Money  paid,  failure  of  consideration,  137. 
Special   contract   as   evidence,   137-138. 
Failure    of    consideration,     special    averment,      suffi- 
ciency, 138. 

(5)  Part     performance,     and     abandonment     of     residue, 

138-139. 

Rule  stated,  138. 

Contract    entire,   willful    abandonment,    138. 
Contract  separable,   138. 


INDEX  1037 

[References  are  to  pages.] 

ASSUMPSIT,  ACTION  OF— Cont'd. 

Of  general  and  special  assumpsit — Cont'd. 

When   general   assumpsit  will   lie   though   there  has   been   a 
•        *  special    contract — Cont'd. 

(5)  Part    performance,    and    abandonment    of    residue — 

Cont'd. 
Consideration,    construction   as   entire    or    separable, 

138-139. 

Instalments  payable  at  fixed  periods,  138. 
Illustration,  139. 

(6)  Special    contract   void,   voidable,    or,   by   defendant's 

fault,  impossible  to  perform,  139-140. 
Rule   stated,   139-140. 
Reason  of  rulCj  140. 
Illustrations,   140. 

Noncompliance  with  statute  of  frauds,  140. 
When  necessary  to  declare  specially,  140-141. 
Action  based  on  express  contract,  140. 
Special   agreement  still  in   force,   140. 
Illustrations,  140-14*. 

Where  contract  remuneration  not  in  money,  141. 
Nature  and  constitution  of  special  counts,  141-148. 
General   observations,    141-142. 

Statutes  abolishing  objections  for  want  of  form,   141. 

Breach  of  contract  and  damage  to  be  stated,  141-142. 

The  essentials  of  a  valid  contract,  142. 

Nature  and  form  of  allegations,  in  general,  142. 

Approved  forms,  advisability  of  using,  142. 

Writing,   not  necessary  to  state  whether  contract  is  in, 

142. 

Essential    averments,    142-148. 
What  are,  142-143. 

(1)  The  promise,  143. 

Necessity  for  and  manner  of  its  averment,  143. 

(2)  The   consideration,  143-144. 

Necessity    for    and    manner   of   its    averment    in 

general,  143-144. 

When    not    necessary   to    allege,    144. 
In  actions  against  carriers,  how  stated,  144. 

(3)  The  breach,  144. 

Same  as  in  covenant,  144. 

(4)  The  damages,  144-146. 

How  stated,  amount,  nature  of  averment,  144-145. 
Need  not  be  claimed  in  each  count,  145. 
Omission  to  claim,  effect  after  verdict,  145. 
Procedure    where    more    awarded    than    claimed, 
145. 


1038  INDEX 

[References  are  to  pages.] 

ASSUMPSIT,  ACTION  OF— Cont'd. 

Nature    and    constitution    of    special    counts — Cont'd. 
Essential  averments — Cont'd. 

(4)  The  damages — Cont'd. 

Omission    to    claim,    demurrer,    145-146. 
Interest    in    excess   of   those    claimed,    146. 
Excessive   award,  appeal   and  error,   146. 

(5)  The   notice,   146-147. 

When  necessary,  in  general,  146. 

Against  endorser  of  negotiable  paper,  146. 

In  actions  on   dishonored  bills  and   checks,   146. 

To   guarantor,  on  collateral  promise,  146. 

When    not   necessary,    146-147. 

Failure  to  allege,  demurrer,   147. 

(6)  The   demand   or  request,   147. 

Necessity  for  and  object  of,  147. 
When    unnecessary,    147. 
Form  of  allegation,  147. 

(7)  Non-payment,    147-148. 

Necessity  for  and   form  of  allegation,   147. 
When    allegation    not   necessary,    147-148. 
Account  to  be  filed  with  the  declaration,   148-149. 

The   statute  and   its   object,   148. 

Procedure    when    sufficient    account    not    filed,    148. 

The  account  no  part  of  the  declaration,  148. 

Demurrer  to,   148. 

Where  no   count  in  declaration  appropriate  to  account,  148. 

When  no  account  need  be  filed,  149. 

Illustration  of  sufficient  and  insufficient,  149. 

At  what  time   filed,   149. 

Need  not  state  matters  of  evidence,  149. 
Avoiding   writ   of   inquiry,    150. 

The  statute,  150. 

Account   served   must   be   intelligible   and   precise,   150. 

Superseded   by  more   comprehensive   remedy,   150. 
Avoiding  writ  of  inquiry  and  'putting  defendant  to   sworn  plea, 
150-154. 

The   statute,   its  purpose  and   effect,   150-151. 

Affidavit  by  "agent,"  how  affiant  described,  151. 

Interest   claimed   in   affidavit,   151-152. 

Manner  of  pleading  under  statute,  152. 

Affidavit,   substantial   compliance  with   statute,    152. 

Affidavit,   no   part   of  plea,   152. 

Demurrer   to  unverified   plea,   152. 

Proper   mode    of   objecting   to    unverified   plea,    152. 

Effect   of  unverified  plea,   152. 


INDEX  1039 

[References  are  to  pages.] 

ASSUMPSIT,  ACTION  OF—Cont'd. 

Avoiding  writ  of  inquiry  and  putting  defendant  to  sworn  plea — 
Cont'd. 

Proceedings  by  clerk  when  plea  not  verified,  152. 

Error  to  compel  trial  on   unverified  plea,  152-153. 

Time   within   which   verified   plea   may   be   filed,    153. 

Verification,  waiver  and  estoppel  to  insist  on,   153-154. 
Misjoinder  of  tort  and  assumpsit,  154-156. 

Rule  as  to  joindjer  of  actions,   154. 

Tort  and  assumpsit  may  not  be  joined,  154. 

Effect  of  misjoinder,   154. 

Form  of  action,  designation  of  pleader  as  criterion,  155. 

Test   of  assumpsit,  promise   and   consideration,   155. 

Averment  of  consideration,  what  is  sufficient,  155. 
In  assumpsit  against  common  carriers,   155. 

Rules  to  be  borne  in  mind,  155. 

General   principles   of   guidance,   155. 

Wrong   designation    of   action,    effect    on    form,    155-156. 
Non  assumpsit,   156-157. 

Nature  and  form  of  this  general  issue,   156. 

Defenses    admissible    under,    156-157. 

General  equitable  defences,  156-157. 

Plea  of  "not  guilty"  as  substitute  for,  156. 

Goes   to   whole   of   declaration,   157. 

Need  not  be  in  writing,   157. 

Identical   in   scope  and  effect  with  nil  debet,  157. 

Grounds  of  defence  called  for  with,  157. 

As  plea  to  action  on  sealed  instrument,  157. 

General  scope  of,  851-852. 

Form    of   plea,    849. 

Proving  equitable   set-offs  under,  854. 
Special   pleas,   157-158. 

Nature  of  discussion,  157-158. 

Defenses  which  must  be  specially  pleaded,  158. 

Defenses  which  amount  to  general  issue,  158. 

Defenses  provable  under   general   issue,   158. 

Specific  notice  of  defence  given  by,  158. 

Improper,  manner  of  making  objection  to,  158. 

Matters  of  defense  arising  after  action  brought,  158. 

What  pleas   amount  to    general   issue,   158. 
Form  of  memorandum  in,  288. 
Laying  damages   in  writ,  288. 
As   concurrent   remedy  with   debt  on   both   simple   contracts  and 

sealed  instruments,   see  Debt,  Action  of. 

As  preferable  action  to  recover  sum  of  money  payable  in  a  com- 
modity, see  Debt,  Action  of. 


1040  INDEX 

[References  are  to  pages.] 

ASSUMPSIT,  ACTION  OF—Confd. 

Assumpsit  as  a  substitute  for  covenant,  see  Covenant,  Action  of. 
Assumpsit  on  judgments  and  decrees,  see  Debt,  Action  of. 
See  also  Action  on  the  Case,  Process. 

ATTACHMENTS 

Nature   and    grounds,    675-681. 
Definition,  675. 

Classes   of   attachments,   675.  f 

Contrasted  with   execution,   675. 

Remedy  statutory,  harsh  and  strictly  construed,  675-676. 
Grounds   of   attachment,   676-681. 
In   general,  676-677. 
Debt  not  due,  debtor  removing  effects  from  State,  677- 

678. 
Words  "debt"  or  "claim"  as  including  damages  for 

breach  of  contract,  677-678. 
Damages  for  a  wrong  in  such  case,  678. 
Against   tenant   removing   effects   from   leased   premises, 

678-679. 

Against  vessels,   679. 
Against   tenants   and   laborers   to   whom   advances   have 

been   made,   679. 

Non-resident   or   foreign   corporation,   679-680. 
Who   deemed  a  non-resident,   679. 
Distinction  between  "domicile"  and  "residence,"  679. 
What  is  residence,  and  who  deemed  a  resident,  679. 
Absconding   debtor   as   non-resident,    679-680. 
Volunteer  in  army,  680. 
One   imprisoned    outside    of   State,    680. 
Resident    of    federal    territory    within    State,    680. 
Surety   non-resident,   principal   not,   effect,   680. 
Foreign    corporation    legally    doing    business    within 

State,  whether   resident,   680. 
Removal   of   goods,   680-681. 

Effect  of  shipments  from  state  in  due  course  of  trade, 

680. 
Removals  from  leased  premises  in  regular  course  of 

business,    680-681. 

Courts  from  which   attachments   may  be  issued,   681-685. 
Attachment   at  law,   681-682. 

When  claim  not  due  or  cause  of  action  not  matured,  681. 

Where  claim  due,  grounds  for  attachment,  681. 

Procedure,   681-682. 

When  jurisdiction   at   law  exclusive,   681. 

Time    at    which    attachment    may    be    issued,    681-682. 


INDEX  1041 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

Courts  from  which  attachments  may  be  issued — Cont'd. 
Attachment   in   equity,   682-683. 

In   what    cases   permissible,    682. 

When   concurrent  with  jurisdiction  at  law,  682-683. 

When  equity  without  jurisdiction,  damages  for  a  wrong, 

683. 

Grounds  for  attachment,  683. 
When    jurisdiction    concurrent    with    that    of   justice    or 

clerk,    683. 
On  claims  not  due,  when  equitable  jurisdiction  exclusive, 

683. 
When  only  grounds  non-resident  or  foreign  corporation, 

and   claim  not  due,  683. 
Claims  for  $20  or  less  not  due,  683. 

No  formal  attachment  issues,  endorsement  by  clerk,  683. 
Attachment  from  a  justice,  683-684. 

When  permissible,  procedure  in  such  cases,  683-684. 

When   exclusive   remedy,    684. 

On   claims  not  due,  684. 

Validity  of  statute  dispensing  with  order  of  publication, 

684. 
Attachment  where  no  suit  or  action  is  pending,  685. 

Against    debtor   removing   effects   out   of   State,    though 

claim    not    due,    685. 

Against   tenant    removing  effects   from    leased   premises, 
when   rent  not  due  but  payable  within  year,  685. 
Proper  remedy  where   rent  is  due,   685. 
Procedure  where  claim  exceeds  $20,  685. 
Procedure  where   claim   does   not   exceed  $20,   685. 
Proceedings   to  procure  attachment,   686-691. 
In   equity,   686. 

The    bill,    essentials   of   and    procedure    on,    686. 

The  affidavit,  686. 

Making  third  persons   defendants,   686. 

The    summons   and    endorsement,    service   on    garnishee, 

686.. 

The  bond,  when   given,   effect,   686. 
Advantage    of  procedure    in   equity,   686. 
At  law,  687-689. 

Attachment   ancillary   to   action   on    matured    claim,    687. 
The  memorandum,   687. 
Designation   of  garnishees,  form  for,  687. 
The   affidavit,   687. 
Form  of  affidavit,  687. 
—66 


1042  INDEX 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

Proceedings  to  procure  attachment — Cont'd. 
At   law — Cont'd. 

Attachment  as   distinct   and   formal   paper,   687-688. 
Form   of  attachment,   688. 
To  whom  attachment  may  be  directed,  688. 
Procedure  as  to  garnishees,  688-689. 
Time   for  issuance  of  attachment,   689. 
Attachment  where  no  action  or  suit  is  pending,  689. 
Essentials   of   affidavit,    689. 

Attachment   a   distinct   paper   and    follows   affidavit,    689. 
Return  of  when  claim  in  excess  of  $20,  689. 
Forms    for    affidavit    and    attachment    for    rent    not    due, 

689-690. 

Attachment  for  twenty  dollars  or  less,  690-691. 
Complaint   on   oath,   690. 
Grounds  for  such  attachment,  690-691. 
Trial    of    attachment    before    justice,    691. 
Where    attachment    levied    on    real    estate,    691. 
Affidavit,   691-698. 

Form  of  against  debtor  removing  property  out  of  State,  687. 

Form  of  against  tenant  for  rent  not  due,  689-690. 

Definition,  691. 

Whether   signature    essential,   691. 

Certificate  of  officer  as  substitute   for,  practice,  691. 

Sufficiency,  691-693. 

Particularity  required,  strict  construction,  691. 
Substantial  compliance  with  statute,  691. 
Authenticating  affidavits   made   out   of   State,   691-692. 
Seal   of   notary   out   of   State   as   self  authenticating, 

691-692. 

Literal   compliance  with   statute   not   required,   692. 
Examples  of  affidavits  held  sufficient  or  the  reverse,  692- 

693. 

Necessity  for   describing   character   of   the    debt   in,   692. 
Necessity  for   stating  amount  due,  692. 
Paper  not  showing  oath,  or  amount  or  nature  of  claim, 

692-693. 

Affidavit   adopting  allegations   of   bill,    693. 
Jurisdiction,  693-694. 

Total    absence    of    affidavit    as    affecting,    693. 

Defective  affidavit  as  affecting,  693. 

Collateral  attack  on  defective  affidavit  not  allowed,  693. 

Illustrations   of,   693. 

Of    equitable    attachment    on    legal    demand    depends    on 
affidavit,    693-694. 


INDEX  1043 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 
Affidavit — Cont'd. 

Jurisdiction — Cont'd. 

Affidavit  part  of  record,  though  not  mentioned  in  plead- 
ings, 694. 
Conjunctive    and    disjunctive    statements,    694-695. 

If  more  than   one   ground   statement   conjunctive,  694. 

Stating  different  phases  of  same  fact  in  disjunctive,  694. 

Difficulty  in  application   of  rule,   illustrations,   694-695. 
Who  may  make  affidavit,  695. 

Plaintiff,    his   agent   or   attorney   at   law,   695. 

When  made  by  agent  what  must  show  as  to  agency,  695. 
Time   of   making   affidavit,   695-696. 

In  chancery  suits,  695. 

What  time  may  elapse  between  affidavit  and  attachment, 

695-696. 
Amendments,  696-697. 

Statutes  as  to,   696. 

No    statute   allowing   in    Virginia,    696. 

Inherent  power  of  court  to  allow  for  formal  or  clerical 
defects,    696. 

In   court  of  appeals,  remanding  case  for,  696. 

Of    affidavit    omitting    "justly,"    696. 

What    amendment    stating    additional    facts    must    show, 
696-697. 

Where  affidavit  fails  to  show  oath  of  affiant,  697. 

Mistake   in   date   of  affidavit,   697. 

Of   garnishment  process  not   returnable  to   legal   return 

day,  697. 
Additional    affidavits    or    attachments,    697-698. 

Several    affidavits   permissible,    697. 

Commencement  of  lien  of  second  attachment,  697. 

Proceeding  both  personal  and1  in  rent  at  same  time,  697. 

New   attachments   on   original   affidavit,   costs,   697-698. 
What  may  be  attached,  698-700. 
In  general,  698. 
Location  of  property,  698. 
Damages  for  torts,  698. 

Legacies  and  shares  in  decedents'  estates,  698. 
Remainders,  698-699. 

Whether    negotiable    note    not    due    may    be,    699. 
Shares  of  stock  in  domestic  corporation,  699. 

In    foreign    corporation,    situs    of    such    stock,    699. 
Priorities  between  purchasers   and  attachment  creditor,   699. 


1044  INDEX 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

What  may  be  attached — Cont'd. 

Priorities   between  purchasers   and  attachment  creditor — Cont'd. 
Subsequent    purchasers    of    tangible    personal    property 

and  real  estate,  699. 

Lis  pendens  in   case  of  purchase   of  real  estate,  699. 
Assignee  for  value  and  without  notice  of  chose  in  action, 

699. 

Where   chose   in   action  assigned  before   levy  of  at- 
tachment, 699. 
Attaching  creditor  acquires  only  such  interest  as  defendant 

has,   699-700. 

Property   over  which   defendant   has  lost,   or  has   never  ac- 
quired,  power,  700. 
What  may   not  be   attached,   700-702. 
Poor  debtors'  exemption,  700. 
Homestead  exemption,  700. 
Property  in  the   custody  of  the  law,   700-701. 
What  is,   in   general,  700-701. 
Garnishment    of    administrator,    executor,    or    debtor    of 

decedent,    701. 
Delivery  of  attachment  to  officer  as  levy  on  property  in 

his  hands,  700. 

Property  taken  from  a  prisoner,  700. 

Personal  chattels  mortgaged  and  left  in  possession  of  mort- 
gagor, 700. 
Property    held    by    public    officer    pursuant    to    public    trust, 

700-701. 

Property  carried  or  worn  by  the  defendant,  701. 
Whether  rolling  stock  of  a  railroad  may  be,  701-702. 

As  interference  with  interstate  commerce,  701-702. 
Debts  or  liabilities  to  become  due  upon  a  contingency  which 

may   never   happen,   702. 

How  and   by  whom  property   is   attached,   702-708. 
Tangible  personal  property,  702-704. 

Mode  of  levy  where  sued  out  against  specified  property, 

702-703. 

Mode  of  levy  when  not  sued  out  against  specified  prop- 
erty, 703. 
Mode  of  levy  where  property  in  actual  possession  of  no 

one,  703. 
Whether    common    law    levy    permissible,    703-704. 

If  so,   in   what   cases   proper,  704. 

Right  of  officer  to  take  possession  when  no  bond  given, 
704. 


INDEX  1045 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

How   and   by  whom   property   is   attached — Cont'd. 
Tangible  personal  property — Cont'd. 

Bond  not  essential  to  validity  of  levy,  704. 

Whether  property  must  be  in  view  and  power  of  officer, 

704. 
Choses  in   action,  704-706. 

Designation  of  garnishees  and  issuance  of  process,  702- 

703,   704. 
Validity  of  garnishment  process  not  returnable  to  next 

term,  704. 
Procedure   when    the    garnishee    appears,    704-705. 

Where  judgment  debtor  claims  property  as  exempt, 

705. 

Procedure  when  the  garnishee  does  not  appear,  705. 
Procedure  when  it  is   suggested  that  garnishee  has  not 

made   full   disclosure,  705-706. 

Assignments  by  or  payments  to  debtor  before  levy,  706. 
Time  as  to  which   garnishee  answers  and  is  liable,  706. 

Indebtedness   or  liability   subsequent   to   levy,  706. 
Liability    of   State,    county   or   municipal    corporation    to 

garnishment,  706. 
Real  property,  706-707. 

How  levy  on  made,  703,  706. 

Form  of  the  levy,  703,  706. 

What  return  must  show  as  to  ownership  and  description 

of  property,   706-707. 
Effect   of   reference   in   return    to   map,   plan,    survey   or 

deed,   707. 

Attachment  and  sale  of  remainders,  707. 
When  levy  on  property  foundation  of  suit,  effect  of  at- 
taching wrong  property,  707. 
By  whom  service  may  be  made,  707-708. 

To  whom   attachment   may   be   directed,   707. 
Where  levy  may  be  made,  county  or  corporation  of  is- 
suance  as   affecting  officer's  jurisdiction,   707-708. 
What  return  must  show  as  to  service,  list  and  descrip- 
tion of  the  property,  708. 

When  attachment  may  be  issued  or  executed  on  Sunday,  322,  708. 
Attachment  bonds,  708,  712. 

Officer    not    required    to    take    possession    of    property    until 

bond   given,   708. 

Whether  he  has  authority  to  do  so,  708. 
Who  may  give,  708. 
To  whom  payable,  708. 


1046  INDEX 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

Attachment    bonds — Cont'd. 

Condition  of  bond,  surety  and  penalty,  708. 
By  one  partner  on  behalf  of  firm,  708. 
Who  may  bring  action  on  bond,  708-709. 
Defendant  in  the  attachment,  708-709. 
Stranger  whose  property  is  improperly  levied  on  under 

a  general  attachment  may  not,  709. 

Stranger  whose  property  is  taken  under  specific  attach- 
ment, 709. 

Rights  of  adverse  claimant  of  property  seized  under,  709-710. 
Right  to  sue  on  bond  where  rightful  attachment  quashed  for 

officers'   default,   710. 

Condition    of   the    bond   in    West   Virginia,   710. 
Replevy   bond   by   defendant,    conditions   and   effect,   710. 

Giving    of    as    general    appearance    authorizing    personal 

judgment,  710-711. 
Return  of  and  exceptions  to,  711. 

Liability   of   officer   where    exceptions    sustained,   711. 
Interest   and  profits   on   attached   property,   to   whom   given, 

711. 
Discharging  attachment  on  bond  by  defendant  to  pay    value 

of  property  attached,  711. 

Sale  of  property  expensive  to  keep  or  perishable,  terms,  711. 
When  plaintiff  required  to  give  bond  before  sale,  711-712. 
Condition  of  such  bond,  711. 
Effect  of  failure  to  give,  711-712. 

Where   attachment   served   on   defendant    sixty   days    be- 
fore decree  of  sale,  712. 
Possessory  bond  not  authority  for  dispensing  with   this 

one,  712. 

Lien    of   attachment,    712-715. 
Created  by  the  levy,   712. 
Real  estate,  712-713. 

From  what  time  lien  dates,  712. 

Necessity,  as  against  subsequent  purchaser,  of  recording 

and   indexing  memorandum  of  attachment,  712-713. 
Personal  property,   712,   713-714. 

From  what  time  lien   dates,   712,  713. 

Necessity  for  record  of  attachment  to  preserve  lien,  713. 

Debts   and    effects    subsequently    acquired    by    garnishee, 

714. 
Priorities,    713-714. 

Subsequent   alienees   of  attached   property,   713-714. 
Assignments  by  and  payments  to  attachment  debtor,  713. 


INDEX  1047 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

Lien   of   attachment — Cont'd. 
Priorities — Cont'd. 

Assignments   before  levy,   713. 

Prior    executions,    713-714. 

As   between   attachments,   time   of   service,   714. 

Unrecorded    foreign    mortgages    or    encumbrances    upon 

personal  property,   714-715. 
Unrecorded  assignment  of  chose  in  action  out  of  State, 

715. 

Right  of  garnishee  to  be  paid  for  keep  of  property,  715. 
Property   subject   to  a  pledge,   715. 

From  what  time  lien  of  additional  attachment  dates,  715. 
On   increase   of  personal  property   attached,   715. 
When  attachment  to  issue,  715-717. 

Where  no  suit  or  action  is  pending,  715-716. 

Debtor  removing  effects  out  of  State,  715-716. 
Tenant   removing  effects   from   leased   premises,   716. 
Attachment  may  issue  before  debt  or  rent  due,  716. 
Must  issue  in  reasonable  time  after  affidavit,  716. 
In  pending  suit  or  action,  716-717. 

When  attachment  too  soon   or  too   late,  716-717. 
Where   the   proceeding   is    by    motion    for  judgment   for 

money,  716. 

When    such   proceeding  cannot   be  basis  for  attach- 
ment,  716. 
Where  suit  or  action  has  abated,  716-717. 

Effect    of   returns   of   "no    inhabitant"    and    "not    found," 

716-717. 

After  the  appearance  of  the  debtor,  717. 
Defenses  to  attachments,  717-728. 

Who  may  make  defense,  717-718. 

Difference  in  defense  to  attachment  and  to  action,  717. 
Parties  who  may  make  defense,  in  general,  717-718. 
Defense    as    discharging    attachment    or    releasing    levy, 

717-718. 

Petitioner   interested    in    property,    717-718. 
General  creditors,  718. 
What  defense  may  be  made,  718-721. 

False   suggestion  or  lack  of   sufficient   cause,   718-719. 

Meaning  of  these  terms,  719. 
Ownership    of    goods    by    third    person    as    defense    to 

debtor,   719. 

Burden  of  proof  on  motion  to  abate,  719. 
When    defense    is    false    suggestion    actual    existence    of 
facts  the  test,  719. 


1048  INDEX 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

Defenses  to  attachments — Cont'd. 

What  defense  may  be  made — Cont'd. 

Distinction  between  actual  and  probable  cause,  720. 

Illustration  as  applied  to  action  for  malicious  pros 

ecution,  720. 

Effect    of    irregularity    where    validity    of    attachment    is 

jurisdictional,   when   objection   may    be   made,    720-721. 

Attachment    issued    too    soon,    when    objection    may    be 

made,   effect   of  appearance   by   defendant,   721. 
Writ  tax  on  attachment  not  paid  within  thirty  days,  721. 
When  defense  may  be  made,  721. 

Before   or  after   return   of  attachment,   721. 

In   term   or   in   vacation,   721. 

Necessity   for   notice   of   motion   to    quash,    essentials   of 

notice,  by  whom  heard,  721. 
How    defense   is   made,    721-723. 
Motion   to    quash,   721-723. 

Whether  proper  where   objection   is   for   matter   de- 

hors  the  record,  721-722. 
Scope   of   this    motion   in   Virginia,   722. 
Affidavit   defective    or  untrue,   722. 
Inquiring   into   merits   of  action   by,   722. 
Special    appearance    to    make    motion   as    submission 

to  jurisdiction  or  waiver  of  defects,  722. 
Material  variance   between  affidavit  and  declaration, 

722-723. 

Attachment  bond  purporting  to  be  signed  by  attor- 
ney in  fact,  723. 

Right  to  renew  overruled  motion,  723. 
Order  of  attachment  not  signed  by  the  clerk,  723. 
Special  appearance  to  move  to  dismiss  action,  effect,  722. 
Where    suit   not   matured   against   non-resident   partner, 

723. 

Right   to   amend   clerical   errors  and  omissions,   723. 
Plea   in   abatement   for   defense   dehors  the   record,   721- 

722. 
For  variance  between  affidavit  and  declaration,  722- 

723. 

When   treated  as  motion  to  quash,  722-723. 
Where    attachment   bond   purports   to   be    signed    by 

attorney   in   fact,    723. 
Defense  to  the  merits,  723-725. 

Not   usually  allowed  on   motion   to   quash,   723-724. 


INDEX  1049 

[References  are  to  pages.] 

ATTACHMENTS— Cont'd. 

Defenses  to   attachments — Cont'd. 
Defense   to   the   merits — Cont'd. 

Necessity   for   establishing   claim   before    sale   under   at- 
tachment, 724. 
Right  of  one  attaching  creditor  to  attack  another's  debt 

or  the  validity  of  his   attachment,  724-725. 
General  scope  of  permissible  defences,  724. 
When  plaintiff  entitled  to  personal  judgment  though  at- 
tachment  quashed,  724. 

How  parties  to  the  proceedings  defend,  724-725. 
Intervening   by   petition,    right   to,  procedure,   725. 

Jury  trial  in   such  cases,   725. 
Judgment  for  the  plaintiff,  725-727. 
Order  of  sale  made  after,  725-726. 
Sale   of  real   estate,  when  proper,   725-726. 

Powers  of  court  of  law  as  to,  726. 

Bond  required  of  plaintiff  when  defendant  has  not  appeared 
or  been  served  with  a  copy  of  the  attachment,  726-727. 
Procedure  where   no   bond   given,   726-727. 
This  bond  in  addition  to  bond  for  seizure  of  property, 

726-727. 

Service  of  attachment  outside  the  State,  effect,  727. 
When  such  bond  not  required,  727. 

Personal  judgment  and  order  for  sale  to  satisfy  same,  727. 
Real  estate  sold  not  rented,  727. 
Order  of  publication,  727-728. 

In  what  cases  must  be  made,  727. 

Seizure  of  attached  effects  as  conferring  jurisdiction,  727. 
Necessity  of   notice   to    non-resident    defendant,   727-728. 
Service  of  process  on  garnishee  only,  727. 
Remedies  for  wrongful  attachment,  728-729. 
Action  on  attachment  bond,  728. 

Who  may  maintain  such  action,  728. 

Damages   for  wrongful   seizure  and   sale  when   property  at- 
tached for  rent  not  due,  or  no  good  cause  for  attach- 
ment,  728. 
Where  attachment  is  for  more  than  is  due  or  accruing, 

728. 

Measure  of  plaintiff's  damages,  728. 
Damages  when  attachment  void  ab  initio  or  wrongfully  levied 

on   property   of   third   person,   728-729. 

Liability  of  officer  and  sureties  on  official  bond,  729. 

Action    for    malicious    prosecution,    when    lies,    729. 

Effect  of  probable  cause  in  such  case,  729. 

Burden  of  proof  as  to  probable  cause,  729. 


1050  INDEX 

[References  are  to  pages.] 

ATTACHMENTS— C'ont'd. 

Holding  defendant  to  bail,  729-731. 

Writ  of  capias  ad  respondendum,  grounds. for  and  procedure 

to  obtain,  729-730. 
Necessity    for   pending    suit,    730. 
Bond  required  of  plaintiff,  730. 
Procedure  upon  capias,  730-731. 

Bond   by  defendant,  its  condition,  730. 

By  whom  bond  of  defendant  may  be  taken,  730. 

Interrogatories  to  defendant,  when  may  be  filed,  730-731. 

When   court   may   discharge   defendant,   731. 

To  whom  conveyance   made,  731. 

Return  of  papers  to  court,  731. 

Order  as  to  sale  and  application  of  estate  conveyed  and 

delivered,    731. 
Appeal   and   error,   731-733. 

Rehearing  in  trial  court,  731-732. 

When   non-resident   defendant  entitled  to,  731-732. 
Necessity  for  application  for  before  appeal,  731-732. 
Effect  on   title  of  bona  fide  purchaser,  731. 
Effect  of  appearance  or  prior  service  of  attachment   or 

process,   732. 

Sufficiency  of  service  made  outside  of  State,  732. 
Objections  for  the  first  time  in  appellate  court,  732-733. 
Irregular  attachment  sole  ground  of  jurisdiction,  732. 
Ancillary  attachment  where  no  suit  pending,  732-733. 
Default    judgment    against    non-resident,    when    another 

defendant   may  object   to   irregularity,   733. 
Appearance   to   the   merits  as  waiver  of  defects,   733. 
See  Clerks  of  Courts,  Executions,  Interpleader,  Justices  of  the  Peace, 
Process,  Tender. 

ATTORNEY  AND  CLIENT 

Liability  of  attorney  for  neglect  of  duty,  or  improper  conduct, 
392-393. 

Advice  of  counsel,  see  Malicious  Prosecution. 

Validity  of  submission  to  arbitration  of  client's  cause  by  attor- 
ney, see  Arbitration  and  Award. 

See  Continuance,  Homestead,  Judgments,  Limitation  of  Actions. 
Rules  and  Rule  Days. 

BAIL 

See  Attachments,  Executions,  Justices  of  the  Peace. 

BAILMENT 

See    Trover  and  Conversion. 


INDEX  1051 

[References  are  to  pages.] 
BANKRUPTCY 

Not  provable  under  broad  general  issues,  368. 
Adjudication  in  does  not  bar  action,  368. 

Effect  in  suspending  actions  against  bankrupt,  pleading,  368. 
Discharge  in  bankruptcy,  368-369. 

As   bar  to   action   against   bankrupt,   pleading,   368. 

As  release  from  liability  for  provable  debts,  368. 

What  debts  are  not  provable,  and  hence  not  discharged,  368. 

As  personal  defence,  waiver,  369. 

When  third  person  may  plead,  369. 
New  promise  to  pay,  antecedent  debt  as  good  consideration, 

369. 

Time  for  new  promise,  effect  of  condition  in,  369. 
Effect  of  uncontested  judgment,  on  provable  debt,  after  pro- 
ceedings commenced  but  before   discharge,   369. 
Plea  of  discharge,  370. 
Form  of  plea,  370. 

General  replication  to,  question  raised  by,  370. 
Special  replication,  when  necessary,  370. 
Debt  not  provable,  370. 
Fraud  in  procuring  discharge,  370. 

BANKS  AND  BANKING. 

Assumpsit  by  payee  of  checks  against  bank,  privity,  see  Assumpsit, 

Action  of. 
See  also  Limitation  of  Actions,  Process,  Set-Off  and  Counterclaim. 

BILL  OF  PARTICULARS 

See  Pleading. 

BILLS  AND  NOTES 

Assumpsit  by  payee  of  check  against  bank,  privity,  see  Assumpsit, 
Action  of. 

Form  of  action  to  recover  on,  see  Debt,  Action  of. 

General  assumpsit  on,  see  Assumpsit,  Action  of. 

Motions  on,  see  Proceedings  by  Way  of  Motion. 

Recovery  of  promissory  note,  see  Detinue. 

See  also  Attachments,  Mechanics'  Liens,  Payment,  Set-Off  and  Coun- 
terclaim. 

BILLS  OF  EXCEPTION 

Origin  and  purpose  of  bills  of  exception,  513-514. 
Statutory  origin,  513. 
Purpose  to  make  errors  part  of  record,  514. 

Of  what  record  in  civil  case  consists,  513-514. 

How  matters  not  part  of  record  made  such,  514. 


1052  INDEX 

[References  are  to  pages.] 

BILLS  OF  EXCEPTION— Cont'd. 

Origin    and   purpose   of   bills   of    exception — Cont'd. 
Purpose   to   make   errors  part   of   record — Cont'd. 
When  no  bill   of  exceptions  necessary,  514. 
Copying  instructions  into  record,  effect,  514. 
Mere  noting  of  exceptions,  effect,  514. 
Stipulation    of   counsel   to   dispense   with,   514. 
Office  of  the  bill,  514. 

Saving  two    or   more   points    in    one   bill,   514. 
How  points  are  saved,  514-515. 
Rejected  evidence,  515-516. 

What  bill  should  show  as  to,  515. 

Where  a  question  is  answered,  515. 
Where  no  answer  is  given,  515. 

Rejected  pleas,  when  bill  necessary — see  appendix,  1020. 
Evidence  wrongfully  admitted,  515-516. 
Competency  of  witnesses,  516. 

Form  of  bill  of  exception  where  evidence  is  excluded,  516. 
Supplying  defects   by  reference,  516-517. 

General  rule  in  absence  of  statute,  516-517. 
Where  all  the  evidence  set  out  in  one  bill,  517. 
Virginia  statute  on  subject,  517. 
Granting    or    refusing   instructions,    517-518. 
Necessity  for  bill   of  exception,   517. 
Excepting  to  instructions  after  verdict,  effect,   517. 
Instructions  merely  copied  into  record,  effect,  518. 
Motion  for  new  trial,  necessity  for,  518. 
Evidence  to  support  an  instruction,  518. 

Where   objection   is  that   there   is   none,   518. 
Verdict  not  supported  by  the  evidence,  518-519. 
Whole  evidence  must   be   in   record,   518-519. 
Time  and  manner  of  filing,  519-523. 
Governed  by   statute,   519. 
Where  statute  fixes  no  time,  519. 
Consent  of  parties  as  affecting,  519. 
The   Virginia    statute,    519-520. 
Postponement    of    time,     necessity     for     consent    of   record, 

520-521. 

Nunc  pro  tune  order  showing  consent,  520. 
Amending  order  after  term  to  show  consent,  520-521. 
From  what  term  thirty  days  estimated,  521. 
Mandamus  to  compel  judge  to  sign,  521. 
Acceptance   of  bill   as  estoppel   to  thereafter  question   same, 

521. 
Judicial  act,  power  to  delegate,  521. 


INDEX  1053 

[References  are  to  pages.] 

BILLS  OF  EXCEPTION— Cont'd. 

Time  and  manner  of  filing — Cont'd. 

Nunc  pro   tune  orders  under  recent  statute,  522. 

Effect  of  such  statute  as  to  imperfect  records,  522. 

What  a  nunc  pro  tune  order  is,  522. 

Actual   agreement   for  extension   of  time   not   of  record, 

522. 
Bill  tendered  in  time  but  not  signed  and  returned  in  time, 

522. 

Essentials  of  bill  where  claim  is  that  verdict  is  contrary  to  evi- 
dence,  523. 

Form  of  such  bill,  523. 
Evidence   of  authentication,   523-525. 
Seal,   523. 

Signature  of  judge,   523. 
Entry  on  record,  523. 

Copying  bills  into  record   by  check,   effect,  524. 
Necessity  for'  record  evidence,  524,  525. 
Judicial  notice  of  signature  of  trial  judge,  524. 
Date  of  signature  as  fixing  time,  524. 
Notation    by    clerks,    524-525. 
Forms   for  authentication,  524-525. 
Necessity  for  memorandum  on  order  books,  525. 
See  Mandamus,  New  Trial,  Verdicts. 

BOARD  OF  SUPERVISORS 

See  Counties. 

BONDS 

See  Appeal  and  Error,  Attachments,  Limitation  of  Actions,  Parties, 
Quo  Warranto. 

BOUNDARIES 

See  Ejectment. 

CALLING  THE  DOCKET 
See  Trial. 

CAPIAS  AD  RESPONDENDUM 

See  Attachments. 

CARRIERS 

Averment   of   consideration    in    assumpsit   against,    see   Assumpsit, 

Action  of. 
See  also  Limitation  of  Actions,  Trover  and  Conversion,  Venue. 

CATTLE 

See  Distress,  Fences. 


1054  INDEX 

[References  are  to  pages.] 
CATTLE-GUARDS 

See  Railroads.  • 

CERTIORARI 

Nature  and  object  of  writ,  784. 

Where  other  adequate  remedy  available,  784. 

Its  issuance  and  mandate,  784. 

To  bring  up  for  review  proceedings  before  justice,  784-785. 

To   obtain   fuller   or   more   perfect   record,   procedure,   785. 

Use  of  the  writ  in  West  Virginia,  785. 

Proceedings  upon  writ,  785. 

CHATTEL   MORTGAGES 

See  Attachments,  Executions. 

CIRCUIT  COURTS 

See  Courts. 

CLERKS  OF  COURTS 

Jurisdiction  and  powers,  38-39. 

In   probate   matters,   38. 

Distinction  between  powers  of  clerks  of  circuit  and  of  corpo- 
ration courts,  38. 

Appeals  from,  38. 

Appointment   of   guardians,    38. 

Substitution   of  trustees,  38. 

Distress   warrants   for  rent,   38-39. 

Attachments,  39. 

See   Attachments,   Bills   of  Exception,  Executions,   Judgments,   Me- 
chanics' Liens,  Rules  and  Rule  Days. 

COMPROMISE   AND    SETTLEMENT 

See  Payment. 

CONSTITUTIONAL  LAW 

Constitution  of  the  United  States,  92-93. 

Judgment  of  sister  state,  effect  of  under,  92-93. 

Judgment  of  District  of  Columbia,  effect  of  under,  93. 
See  Appeal  and  Error,  Demurrer,  Homesteads,  Jury,  Process. 

CONTEMPT 

Suing  court  receiver  without  leave  as,  see  Parties. 

CONTINUANCE 

Discretion  of  trial  court,  461-462. 
When  motion  should  be  made,  462. 


INDEX  1055 

[References  are  to  pages.] 

CONTINUANCE— Cont'd. 

Causes  for  continuance,  462-468. 
Continuance   of  right,  462-463. 

Attorney  member  of  General  Assembly,  462. 
Party  to  whom  an  issue  is  tendered,  462-463. 
Party  tendering  issue,  462. 
New  parties,   463. 
Absence  of  witness,  463. 

Materiality  of  the  witness,  463. 

Inability  to  prove  same  facts  by  others,  463,  464. 

Use  of  due  diligence  to  procure  the  witness,  464. 

Necessity    for    tender    of    mileage    and    attendance, 

464-465. 

How  witness  compelled  to  attend,  464-465. 
Reasonably  probability  of  presence  at  another  trial,  465. 
Non-resident   witness,    465. 
Witness   at   distance,   deposition,   465. 

Affidavit  or  statement  as  to  testimony  expected.  465-466. 
Absence  of  papers,  466. 
Surprise,  466. 

Summoning  wrong  witnesses,  466. 
At  contents  of  bill  of  particulars,  466. 
Breach  of  stipulations  of  counsel,  466. 
Absence  of  counsel,  466-467. 

Leading  or   sole   counsel,  466. 
Protracted  illness,  466. 
Prior  engagement,  466-467. 
Other  counsel  present,  467. 
Absence  of  a  party,  467. 
Change  in  the  pleadings,  467. 
Failure  to  serve  process,  467-468. 

Affidavits,  etc.,  in  support  of  motion  for,  practice,  468. 
Spreading  application  for  upon  record,  468. 
Refusing  a  continuance,  468. 

Effect  of  where  wrongful,  468. 
When  proper  to  refuse,  468. 
Cost  of  continuance,  468-469. 
See  frosts. 

CONTRACTS 

Essentials  of  a  valid,  142. 

Assumpsit  on  implied  contracts,  see  Assumpsit,  Action  of. 
Simple  contract  debt  as   subject  of  accord  and   satisfaction,  see 
Accord  and  Satisfaction. 


1056  INDEX 

[References  are  to  pages.] 
CO  NTR  ACTS— Cont  'd. 

Obligations  under  seal  as  subject  of  accord  and  satisfaction,  see 

Accord  and  Satisfaction. 
See  also  Limitation  of  Actions,  Trover  and  Conversion. 

CONVICTS 

See  Parties,  Process,  Venue. 

CORPORATION  COURTS 

See  Courts. 

CORPORATIONS 

Affidavit    denying   incorporation,    when    filed    with    nil   debet,   see 

Debt,  Action  of. 

As   defendants  in  actions  ex  delicto,  see  Parties. 
How  they  sue  and  are  sued,  see  Parties. 
See  also  Attachments,  Executions,  Libel  and  Slander,  Limitation  of 

Actions,  Malicious  Prosecution,  Pleading,  Process,  Venue. 

COSTS 

Generally  regulated  by  statute,  593-594. 

In  equity,  discretion  of  trial  court,  594. 

Who  entitled  to  recover,  general  rule,  594. 

Poor  persons,  594. 

Where  less  than  $20.00  recovered  in  contract  action,  594. 

Where  less  than  $10.00  recovered  in  tort  action,  594. 

Prohibition   to  prevent  recovery  of  costs,   594. 
Requiring  security  for  of  non-resident  of  state,  594-596. 

The  Virginia  statute,  594-595. 

Notice  to  non-resident,  595. 

Necessity  for  order  of  dismissal,   595. 

Waiver,   595. 

Costs  in  appellate  court,  595. 

Time    for    giving,    595. 

Continuances,  595-596. 
Cost  of  new  trial,  596. 
On  new  trial,  see  Motions  after  Verdict. 

See  also  Continuance,  Executions,  Justices  of  the  Peace,  Mandamus, 
Quo   Warranto,  Set-Off  and  Counterclaim.  t 

COUNTIES 

Board  of  Supervisors,  37-38. 

Jurisdiction  and  powers,  37-38. 

Appeals  from,  37-38. 
See  Attachments,  Executions,  Limitation  of  Action?. 


INDEX  1057 

[References  are  to  pages.] 
COUNTY   COURTS 

See  Courts. 

COURT    COMMISSIONERS 

See  Appeal  and  Error. 

COURT  OF  APPEALS 

See   Courts. 

COURTS 

Court  system  of  Virginia,  44. 
Circuit   Courts,  44-47. 
Jurisdiction,    44-47. 

In  general,  44-45. 

Concurrent  with  justice,  44. 

Exclusive,  44. 

Quo    Warranio,   and   other   extraordinary   remedies,   44. 

Criminal    matters,    45-46. 

Probate  jurisdiction,  45. 

Change  of  names,  45. 

Appeals    from   justices,   45-46. 

Enforcement  of  police   regulations,  46. 

Appeals  from  inferior  tribunals  in  general,  46. 

Motions,  jurisdictional  amount,  46. 

Former   county   court   matters,   46-47. 

Concurrent  with  corporation   courts,  in   cities  of  second 
class,  46. 

Appeals  involving  validity  of  corporation  by-law  or  ordi- 
nance, 46. 

Appeals  to  from  corporation  courts,  47. 
Corporation   courts,  44-47. 
Jurisdiction,   44-47. 

In  general,  44-47. 

Courts  excepted  from  general  rules,  44,  47. 

Of   City   of   Lynchburg,   extent   of,   47. 

Probate  jurisdiction,  45. 

Change  of  names,  45. 

Appeals   from  justices,   45-46. 

Enforcement  of  police   regulations,   46. 

Concurrent    with     Circuit    Courts,    in     cities    of   second 
class,   46. 

Criminal  matters,  46. 

Appeals  involving  validity  of  corporation   by-law  or  or- 
dinance, 46. 
Appeals  from   to   Circuit   Courts,  47. 

—67 


1058  INDEX 

[References  are  to  pages.] 

COURTS— Cont'd. 

Court  of  Appeals,  48,  738-745. 

Civil  jurisdiction   of,  48,   738-745. 
Original,  48,  738-741. 
Appellate,    48,    742-745. 

In   matters   pecuniary,   48,   744-745. 
In   matters   not  pecuniary,   48,   742-744. 

Judicial  notice  of  want  of  jurisdiction,  when  taken,  348,  771-772. 
Nisi  prius  courts,  how   term  originated,  286. 
Recovery  of  money  under  §  3211  Code  of  Va.  in  federal,  163. 
Receivers  of,  proceedings  by  and  against,  see  Parties.     See  also 
Appeal  and  Error,  Clerks  of  Courts,  Demurrer,  Equity,  Judgments, 
Justices    of    the    Peace,    Limitation  of  Actions,  Pleading,  Process, 
Rules  and  Rule  Days,  Venue. 

COVENANT,   ACTION    OF 

Nature  of  the  action,  105-107. 

In  general,  105. 

Nature  of  the  covenant,  105. 

Nature   of  damages   recovered,   105. 

When   concurrent   remedy  with   debt,  105. 

Difference   in   theory   between   and   debt,   105-106. 

Express  or  implied   covenants,   106-107. 

Covenantor  must   sign  and  seal   instrument,   106-107. 

Against  grantee  not  signing  deed  poll,  106-107. 
When   covenant  lies,   107. 

Cases  in  general,  107. 

When   exclusive  of  debt,   107. 

Against   whom,    107. 
When   covenant   does   not   lie,   108. 

In  general,  108. 

Parol    modification    of    sealed    contract,    108. 

On  trust  deed  executed  as  collateral  security,  108. 
Who   may  bring  covenant,   108-109. 

The  covenantee,  108. 

Third  person,  beneficiary,  108-109. 

As    respects    deeds    inter   paries,    108-109. 
In  cases  of  deeds  poll,  108-109. 
Effect    of    Virginia    statute,    109. 
The  declaration,  109-111. 

Much  like  that  in  debt  and  assumpsit,  109-110. 

Conclusion  of,  110. 

Alleging  consideration,  110. 

Setting  out  promise,  110. 

Reciting  the  covenant,   110. 


INDEX  1059 

[References  are  to  pages.] 

COVENANT,    ACTION    OF—Cont'd. 
The  declaration — Cont'd. 
Alleging  a  seal,  110. 

Delivery,  necessity  for  allegation  of,   111. 
Alleging  performance  of  conditions  precedent,  111. 
Manner  of  alleging  breach,  111. 
The  damages,  111. 
Pleas  in  action  of  covenant,  112-115. 
No   general   issue,   112. 

Effect  of  non  est  factum  pleaded  alone,  112. 
All  pleas  in  effect  special,  112. 
Matters  which   must  be  plead  specially,  112. 
Covenants  performed  and  covenants  not  broken,  112-114. 

When  such  pleas  proper,  112. 

Covenants  performed  when  proper  plea,  112-113. 

Covenants   not   broken   when   proper  plea,   113. 

How  on  bond  with  condition,  113. 

Covenants  performed,  requisites  of  plea,  113. 
Issue  made  by  and  evidence  under,  113. 

When  both  pleas  are  used,  113. 

Admission  by  the  use  of  these  pleas  alone,  114. 

Burden  of  proof  on  plea  of  covenants  performed,  114. 

Conclusion   of  plea  of  covenants  performed,   114.  *• 

General  discussion  of,  958-960. 
Plea  of  non  damnificatus,  114-115. 

When   applicable,   114. 

Nature  of  plea,  114. 

When  not  proper,  114. 

Plea  that  defendant  has  saved  harmless,  114-115. 

Equivalent  to  "condition  performed,"  115. 

Oftenest  used  in  debt  on  bond,  115. 

General  discussion  of,  956-958. 
Assumpsit  as  a  substitute  for  covenant,  115-117. 
The    statute,    115. 

Assumpsit   takes   place   of   both    actions,    115. 
Actions  not  interchangeable,  115. 

Joinder  of  counts  on  sealed   and  unsealed  instruments,   115. 
Form  of  defense  to  sealed  instruments  under,  116-117. 
Declaration   must  show  whether  seal,  116. 
Xon  assumpsit  to  sealed  instrument,  116-117. 

Scope   of   defenses  under,   116-117. 

Should   be   held   inapplicable,   117. 
Should  be  two  general  issues,  117. 
Proper  restrictions  as  to  evidence,  117. 
What  should  be  pleaded  specially,  117. 


1060  INDEX 

[References  are  to  pages.] 

COVENANT,   ACTION    OF—Cont'd. 
Form  of  memorandum  in,  288. 
Laying  damages  in  writ,  288. 

As  preferable  action  to  recover  sum  of  money  payable  in  a  com- 
modity, see  Debt,  Action  of. 
See  also  Parties,  Process. 

COVENANTS 

See  Limitation  of  Actions. 

CREDITORS'   SUIT 

See  Judgments,  Limitation  of  Actions. 

CRIMINAL  LAW 

Waiving  criminal  tort  and  suing  in  assumpsit,  see  Assumpsit,  Ac- 
tion of. 
See  also  Courts. 

DAMAGES 

Averments  of  in  declaration,  see  Assumpsit,  Action  of,  and  other 
specific  heads. 

Power  of  jury  to  apportion  among  joint  tort  feasors,  see  Parties. 

Special  as  determining  whether  cause  of  action  is  tort  or  con- 
Jyract,  see  Parties. 

Special  contract  as  governing  in  general  assumpsit,  see  Assump- 
sit, Action  of. 

See  also  Attachments,  Demurrer,  Demurrer  to  Evidence,  False  Im- 
prisonment, Libel  and  Slander,  Limitation  of  Actions,  Malicious 
Prosecution,  Motions  after  Verdict,  Parties,  Rules  and  Rule  Days, 
Trespass,  Trial,  Trover  and  Conversion,  Venue,  Verdicts. 

DEATH 

Death  by  wrongful  act,  68-70. 
Venue    of    action,    69. 

In  State  where  injury  occurs,  69. 

In  foreign  jurisdiction,  69. 

Conflict  of  laws,  law  of  place  of  injury  determines  what,  69. 
Pleading,   69. 

Beneficiaries,   necessity   for  alleging  existence   of,   69. 
Beneficiaries,   who   are    under   Virginia    statute,    69. 
Evidence,  69-70. 

As    to    family    of   decedent,    69. 

As  to  estate  of  decedent,  69. 

As  to  insurance,  70. 
No  recovery  for  at  common  law,  231. 
Remedy  in   Virginia   and   other   States,   231. 
Form  of  action  for,  231. 


INDEX  1061 

[References  are  to  pages.] 

DEATH— Cont'd. 

Death  by  wrongful  act — Cont'd. 

Death    of   wrongdoer    before    victim,    effect,    231. 
'  Statutes  as  giving  new  and  independent  cause  of  action,  383- 

384. 

Where  decedent  survives  injury  more  than  year  and  day,  384. 
Statute  as  giving  more  than  one  cause  of  action,  384. 

Election  between  new  action  or  revival  of  old  one,  384. 
Of  sole  party,  effect  of,  see  Parties. 

Right  of  representative  of  non-resident  alien  to  sue  for,  see  Par- 
ties. 

See  also  Action  on  the  Case,  Appeal  and  Error,  Executions,  Exemp- 
tions, Homesteads,  Judgments,  Limitation  of  Actions,  Master  and 
Servant,  Trespass.  *> 

DEATH  BY  WRONGFUL  ACT 
See  Death. 

DEBT,  ACTION  OF 

Nature   of   action,    79-83. 
In   general,   79-80. 

Ancient  joinder  of  debt  and   detinue,  79-80. 
Wager  of  law  as  one-time  impediment,  80. 
Exact  sum  claimed,  necessity  for  recovery  of,  80. 
Assumpsit  more  usual  on   simple  contracts,  80. 
Specific  instances  in  which  debt  lies,  80-81. 
Debt  upon   bills  and  notes,  81-82. 
Debt  upon  negotiable  instruments  generally,  82-83. 
Assumpsit  as  concurrent   remedy  on   sealed  instruments,  83. 
What  is  a  sum  certain,  83-89. 

Sum  of  money  to  be  paid  in  a  commodity,  83-89. 

When  quantity  of  commodity  is  not  fixed,  83-89. 

When    quantity    of   commodity    is    fixed,    83-89. 

Rule  as  to  bank   notes,  not  legal  tender,  83-89. 

Payment   in   commodity   alternative   privilege,  83-89. 

Assumpsit  or  covenant  preferable   in   such   cases,  88-89. 
Debt  to  recover  statutory  penalties,  89-91. 
Under  statutes,  89. 
Independent   of   statute,   89-91. 

As  exclusive  or  simply  permissive  form  of  action,  89-91. 
Debt  on  judgments  and  decrees,  91-94. 

As  permissive  or  exclusive  remedy,  91-93. 
Right  to   sue   on  judgment,   91-92. 
Election  between  debt  and  assumpsit,  92-93. 
On  judgments  of  justices  of  the  peace,  93. 
On  judgments  of  courts  not  of  record,  93. 
To  enforce  decrees  in  equity,  93-94. 


1062  INDEX 

[References  are  to  pages.'] 
DEBT,  ACTION  OF— Cont'd. 
The  declaration  in  debt,  94-96. 
In  general,  94. 

Statement  of  consideration  in,  94-95. 
Claiming  interest  in,  95. 

On  "bond  conditioned,"  mode  of  assigning  breaches,  95,  956. 
Stating  matters  of  defeasance,  95-96. 
The  damages,  96. 
On    "bond    conditioned,"    assigning    breaches    in    replication, 

879-880. 

Laying  damages  in  writ,  287-288. 
The  general   issues  in  debt,  96-104. 
What   are,   96. 
Nil   debet,  96-100. 

Scope  of  and  proof  under,  in   general,  96-97. 

Form  of  plea,  96,  848-849. 

Showing  payment  under,  97. 

Showing  accord  and  satisfaction  under,  97. 

Showing  an   award   under,   97. 

Showing  agreement  to  submit,  97-98. 

Showing  submission  and  award  in  pending  suit,  98. 

Bad   plea   to    debt    on    specialty,   98. 

When   specialty   is   only   inducement,   98. 

To  action  on  domestic  judgment,  98,  103. 

To   action   on   foreign  judgment,   98-99,   103-104. 

To   action   on  justice  judgment,   98-99. 

Showing    former    adjudication    under,    99. 

Affidavit,    denying    signature,    etc.,    filed    with    when,    99. 

Affidavit,     denying    partnership     or    incorporation,     filed 
with  when,  99. 

Need   not  be  in  writing,   100. 

Calling  for  grounds  of  defense  with,  100. 
Non  est  factum,  100-102. 

Form  of  plea,  848. 

When  applicable,  100. 

Scope  of  plea,  100-102. 

Verification,    101. 

When  used,   101. 

Proof  under,   101-102. 

Burden    of    proof    on,    101. 

When  execution  admitted  but  instrument  void,  101. 

Showing  gaming  consideration  and  usury  under,  101-102. 

Showing  lunacy  under,   102. 

Showing  fraud  in  factum  and  in  procurement  under,  102. 

Showing   failure    of   consideration,   etc.,   under,   102. 

Plea  of  as  personal   defense,   102. 


INDEX  1063 

[References  are  to  pages.] 
DEBT,  ACTION  OF—Cotifd. 

The  general  issues  in  debt — Cont'd. 
Nut  Tiel  Record,  102-104. 

Scope  of  and  proof  thereunder,  102-103. 
Burden  of  proof  under,  102-103. 

Want  of  jurisdiction  shown  by  special  plea,  103-104. 
Except  as  to  foreign  judgment,  then   nil  debet,  103,  104. 
Matters   in   discharge   of  judgment,    104. 
Fraud,  104. 

Form  of  plea,  104,  849. 
Form  of  replication  to,  104. 
Issues  raised  by,  104. 
How   tried,    104. 
Evidence,  104. 
Order  of  trial,  104. 
Form  of  memorandum  in,  287-288. 

Proving  equitable  set-offs  under  general  issue  in,  854. 
Pleading  performance  in  debt  on  bond  conditioned,  956. 
See   Process,   Rules   and   Rule   Days. 

DECREES 

See  Judgments. 

DEEDS 

See  Homesteads,  Limitation  of  Actions. 

DELIVERY  BOND 

See  Executions,  Judgments. 

DEMURRER 

Introductory,  337. 

General    classification   of  pleadings,   337. 

(1)  Traverse,  337. 

(2)  Confession   and   avoidance,   337. 

(3)  Demurrer,  337. 
Definition,  337-338.  , 
Derivation  of  word,  338. 

Function   of,   337-338. 

As  part  of  record,  338. 

Distinguished  from  demurrer  to  evidence,  338. 

When  not  applicable,  337-338. 

Defects  other  than  in  pleadings,  338. 

Failure  to  file  affidavits,  accounts,  etc.,  148,  152,  338,  350. 
Time  of  filing,   338-339. 

Discretion   of  court,  339. 

In  practice.  339. 
At  common  law.  formal  defects,  339. 


1064  INDEX 

[References  are  to  pages.] 
DEMURRER— Cont'd. 

Special  demurrers,  339-341. 
Why  so  called,  340. 

Statement    of    grounds    as    constituting,    341. 
For  formal  defects,  339-340. 
Abolished  in  Virginia,  340. 

Save  as  to  dilatory  pleas,  340,  269,  334. 
General   demurrers,   339-342. 

Scope   of  at   common   law,   339. 
Scope  of  under  Virginia  statute,  340. 
Why  so  called,  340. 

Must  in  civil  cases  be  in  writing,   340-341. 
Form  of  demurrer  and  joinder,  340-341. 
Stating  grounds  of  demurrer,  340-341,  360. 
Amendments,  time  for,  341. 
To  entire   declaration,   effect   of,  341-342. 

Where  one   count   or   one   demand   good,   341. 

Proper  form  of  demurrer  when  several  counts  in  declaration 

or  several   breaches   assigned,   341-342. 
When    objections    is    for    misjoinder,    341-342. 
Election  to  demur  or  plead,  342-344. 
At   common   law,   342. 

Necessity  for  making,  342. 
Considerations  determining,  342. 
In   Virginia,   342-343. 

In   what   cases   election    necessary,   342-343,   360. 
West  Virginia  rule,  342,  344. 

Objection  or  motion  to  strike  as  substitute  for,  343. 
Procedure  and  review,  343. 
Advantage  over  demurrer,  343. 

Withdrawing  demurrer  and  replying  in   fact,  343-344. 
Object  of,  343. 
As  matter  of  right,  343-344. 
What   record   shows,   review,   343-344. 
Pleading  after  demurrer,  effect  as  withdrawal,  344. 
Who  may  demur,  344-345. 
Strangers  to  action,  344. 
Party  whose  interest  not  affected,  344-345. 
Joint  defendants,  no  joint  action,  joint  or  several  demurrer, 

345. 
In  cases  of  misjoinder  of  parties,  345. 

Motion   to  abate   now   only  remedy,   76,  345,   347. 
Causes  of  demurrer,  345-350. 
Formal  defects,  345-346. 
At   common   law,   345. 


INDEX  1065 

[References  are  to  pages.] 

DEMURRER— Cont'd. 

Causes  of  demurrer — Cont'd. 
Formal   defects — Cont'd. 

In   Virginia,   345. 

Distinction  between  formal  and  substantial  defects,  345- 

346. 

Substantive  law  determines,  346. 
No   violated   duty   alleged,    346. 
Apparent    contributory    negligence,    346-347. 

Negativing,    necessity   for,    347. 
Wrong  form  of  action,  347. 
Misjoinder  of  causes  of  action,  154,  347. 

Amendments,    347. 

Under  code  practice,  347. 
Non-joinder  of  parties,  75,  347. 
Misjoinder  of  parties,  76,   345,  347. 
Want  of  jurisdiction  of  subject  matter,  347-348. 

What    is,    348. 

Noticed  in  appellate  court  ex  mero  motu,  348. 
Want  of  jurisdiction  over  parties,  348. 

Unconstitutionality   of    statute   under   which    action    brought, 
348. 

Review,  necessity  of  decision  by  trial  court,  348. 
In  libel  and   slander,  348-349. 

Words  declared  on  as  insults,  252,  348-349. 

Defective  allegation  of  common  law  slander  or  libel,  252, 

348-349. 
Actions  on  sealed  instruments,  349. 

Variance,   craving  oyer  and  demurring,  349. 
Rule    where    instrument    unsealed,    349. 

Deed  void  on  its  face,  349. 

Amendments,    349. 

Craving  oyer   of   record  and   demurring,   349. 

Pleading   nul   ticl   record   after   oyer,   349. 
Variance  between  declaration  and  writ,  349. 
Duplicity    in    declaration   or   other   pleading,    334-336,    350. 

In  pleas  in  abatement,  334,  350. 

Action  barred  by  statute  of  limitations,  350,   190,  379,  406. 
No   damages   claimed   in   declaration,   145,    146,   359. 
What  defects  not  regarded  on  demurrer,  359-360. 
Effect  of  demurrer,  351-354. 

As    admission    of    truth    of    facts    pleaded,    351. 

Pleaders'  inferences  or  conclusions  of  law,  351. 

What    not   admitted,   351. 
Review   of  whole   record  by   court,  351-354. 

Reason    of   rule,    illustration,    352-353. 

Qualifications  of  and  exceptions  to  rule,  353-354. 


1066  INDEX 

[References  are  to  pages.] 
DEMURRER— Confd. 

Effect   of   failure   to   demur — pleading   over,   354-360. 

General  rule  as  to  waiver  of  defects  by  failure  to  demur,  354. 
Failure  to  demur  as  admitting  sufficiency  in  law  of  facts,  354. 
What  defects  cured  by  pleading  over,  354. 
What  defects  cured  by  verdict,  354-355. 

Construction    and    presumptions,    354-355. 
Errors   cure,d   by   the    statute    of  jeofails,   355-359. 
The   statute,  355. 

Object   and  purpose   of  statute,   355. 
Construction  and  application   of   statute,   355-356. 

Objection  to  reception  or  motion  to  strike  out  plead- 
ing as    substitute   for   demurrer  under,   355-356. 
Defective  statement  of  case,  356. 
Where  no  case  at  all  stated,  344,  356,  359. 
Where  court  has  no  jurisdiction  of  subject  matter,  359. 
Misjoinder    of    issue,    356-357. 
Misjoinder  of  causes  of  action,  358,  363. 
Non-joinder   of    issue,    356-358. 
General    rule,    356-358. 

Where   no   injury   could  have  resulted,   356-358. 
Tendency  of  the  modern  cases,  358. 
Compelling  trial  without  joinder,  review,  358. 
Defective  or  no  statement  of  damages,  145,  358-359. 
Plea  and  demurrer  at  same  time,  which  issue  first  tried,  360. 
Failure  of  record  to  show  ruling  on  demurrer,  presumptions,  360. 
Judgment  on  demurrer,  360-367. 

Demurrer  to  plea  in  abatement,  278,  353,  360-361. 

Difference  when  sole  issue  one   of  fact,  277-279,  360-361. 
Demurrer   to   whole    declaration,    some   counts   good,   361. 
Demurrer  to  declaration  and  each  count,  some  counts  good 

some  bad,  361. 

Demurrer   to    bad    count   overruled,   effect,    361-362. 
Demurrer  to   original   none  to  amended   declaration,   review, 

362. 
Demurrer  to   declaration   sustained   for  misjoinder  of  causes 

of  action,  362-363. 
Right  to  amend,  362-363. 

Continuances   and   costs,   362-363. 
Where  amendment  still  retains  error,  363. 
Demurrer  improperly  overruled,  liberty  to  amend  by  ap- 
pellate  court,   363. 
Demurrer  to  some  counts,  issues  of  fact  pending  on  others. 

363. 

Same  as  to  pleas,  363-364. 
When  question  of  laiv  goes  to  whole  merits,  364. 


INDEX  1067 

[References  are  to  pages.] 

DEMURRER— Cont'd. 

Judgment   on   demurrer — Cont'd. 

Amendments,  when  allowed,  364. 

As   waiver   of   erroneous   ruling,    364-365. 
Effect  of  declining  to  amend,  364-365. 

Judgment    on    affirmance    or    reversal,    364-365. 
Demurrer    erroneously   overruled,    reversal,    leave    to    amend, 

364. 

Demurrer  to   both   original  and   amended   declarations   over- 
ruled,   re-versal,    final   judgment,    364. 
Finality  of  so  as  to  preclude  same  action  or  defense  in  fu- 

,ture,  364-365. 
Demurrer   to   plea    sustained,   withdrawing   plea,    365. 

Waiver  of  erroneous  ruling,   365. 

Demurrer  to  plea  overruled,  permission  to   reply,  365-366. 
When  demurrer  to   sole  plea   sustained,  366. 
Demurrer   to   plea    erroneously    sustained,   whether   appellate 

court  on  reversal  can  grant  liberty  to  reply,  366-367. 
Right  of  appellate   court   to   allow  amendments   on   reversal, 

363-364,   366-367. 
To   notice   of  motion   for  judgment,   see  Proceedings  by   Way   of 

Motion. 

See  also  Appeal  and  Error,  Ejectment,  Judgment,   Libel  and  Slan- 
der, Limitation  of  Actions,  Mechanics'  Liens,  Verdicts. 

DEMURRER  TO  EVIDENCE 

Nature  of  demurrer  to  evidence,  481-483. 

As  a  pleading  and  part  of  record,  481. 

Signature   of   counsel,   481. 

Contrasted  with  demurrer  to  a  pleading,  481. 

To  what  extent  remedy  used,  482. 

Effect    of   guaranty   of  jury   trial    on,    482. 

Motion   to    strike   compared  with,   482. 

Right  to  on  issue  devisavit  vel  non,  482-483. 
Form  and  requisites  of  demurrer  and  joinder,  483-486. 

Original  practice  as  to  admitting  facts  upon  record,  483-484. 

Modern  practice  as  to  admitting  facts  upon  record,  483. 

Effect  of  Virginia  statute  on  former  rules,  483-484. 
Object  of  statute,  484. 
Stating  grounds  of  demurrer,  484. 

All  of  the  evidence  should  be  set  out,  484. 

Withdrawing  demurrer,  introducing  new  evidence,  etc.,  484. 

Mode   of  procedure,  484-486. 

Form  of   demurrer  to   evidence   and  joinder,  485-486. 

Relative  functions  of  court  and  jury.  486. 


1068  INDEX 

[References  are  to  pages.] 
DEMURRER  TO   EVIDENCE— Cont'd. 
Right  to  demur,  486-487. 
Who  may  demur,  486. 
Party  having  burden   of  proof,  486. 
As  affected  by  form  of  action,  486-487. 

Actions  for  insulting  words,   487. 
Effect  of  demurrer  to  evidence,  487. 
Joinder  in  demurrer,  487-489. 

Compelling,   discretion  of  trial  court,  487-488. 
Objection  to,   time  for  making,  488. 
When  court  will  not  compel,  488-489. 
Concessions   on    demurrer   to   the   evidence,   489-491.      « 
What   is   conceded,   489-490. 

Effect  on  title  papers  in  action  of  ejectment,  490. 
As  affecting  availability  of  remedy,  491. 
Unimpeached  evidence  of  demurrant,  491. 
West  Virginia  rule,  491. 

Procedure   on  demurrer  to  the   evidence,  491-495. 
In   general,   491-492. 
Assessment  of  damages  by  jury,  492. 
Form   of   verdict,    492-493. 
Objection  as  to  amount,  time  for,  493. 
Discharge  of  jury,  493-494. 

Bill   of  exception   or  motion   for  new   trial,  493. 
New  evidence  after  joinder,  discretion  of  court,  484,  493. 
Non-suit  after  joinder,  484,  493. 
View  of  whole  evidence  by  court,   494. 
Demurrer  as  waiver  of  objections  to  evidence,  494. 
Effect  of  illegal  evidence,  494. 
Rules  governing  court  in  its  decision,   finality  of  judgment, 

494. 

Demurrer  overruled,  but  verdict  set  aside,  procedure,  494-495. 
Demurrer  by  part  of  defendants,  verdict  as  to  all,  procedure, 

494. 
Rule  of  decision,  495-497. 

Virginia  rule,  what  jury  might  have   done,  495-496. 

West    Virginia    rule,    preponderance    of    the    evidence    test, 

496-497. 

Exceptions  to   rulings,  and  writ  of  error,  497-498. 
Demurrer  as  per  se  part  of  record,  497. 
Procedure   for   obtaining  writ   of   error,   497. 
How  case  heard  on  appeal,  497. 
Finality  of  judgment   on   appeal,   497-498. 

Appellate  judgment  where  joinder  erroneously  refused,  498. 
When  case  will  be  remanded,  498. 
See  Appeal  and  Error,  Demurrer,  Trial,  Verdict. 


INDEX  1069 

[References  are  to  pages.] 

DEPOSITIONS 

See  Jury,  Mandamus. 

DETINUE 

Object  of  action,  209. 
Recovery,  increase  of  property,  209. 
Compared  with   replevin,   209-210. 
Demand   for  property,  when   necessary,   209. 
Taking  lawful,  detention  unlawful,  209-210. 
Taking  unlawful,  209-210. 
Essentials  to  maintain  the  action,  210. 
To   recover  promissory   note,  210. 
Parties,  210-211. 

Plaintiff,  general  rule  as  to  qualifications,  210. 
Possession  as  against  wrongdoer,  210. 
By  trustee  to  recover  converted  property,  210. 

How  as  to   beneficiary,  210. 

Against  defendant  who   never  had  possession,  210. 
Against  one  who  has  parted  with  possession,  210-211. 

Recovery   in    such   cases,   211. 
Description  and  value  of  the  property,  211. 
Requisite  certainty  of  description,  211. 
Affixing  value,  necessity  for,  211. 
General  issue,  non-detinet,  form  of  plea,  211,  849. 
Defenses  under,  in  general,  211. 

Property   dead  when  action  brought,  211. 
Prescriptive  title,  211. 
Special  plea,  when  necessary,  211. 
Defenses,  211-212. 

Death  or  destruction   of  property  pendente  lite,  212. 
As   defense,  212. 
How  pleaded,  212. 

Property   dead   when   action   brought,   211. 
Outstanding  title,  212. 

No  previous  possession  in  plaintiff,  212. 
Defendant  trespasser  on  actual  possession,  212. 
Prior  possession  in  plaintiff  and  prima  facie  case,  212. 
Verdict,  212-213. 

At  common  law,  responsiveness  to  issues,  212-213. 
Under  the  Virginia  statute,  213. 
Execution,  213-214. 

At  common  law,  213-214. 

No  writ  of  possession,  213. 
Distringas  and  fieri  facias,  form,  213. 
On  what  executed,  213-214. 


1070  INDEX 

[References  are  to  pages.] 

DETINUE— Cont'd. 
Execution — Cont'd. 
In  Virginia,  214. 

Writ  of  possession,  214. 
Fieri  facias  and  distringas,  214. 
Election  of  remedies,  214. 
Preservation  of  property,  214,  223-224. 

Giving  to  plaintiff  when  action  begins,  214,  224. 
Giving  to   sheriff,  procedure,   214,   223-224. 
Return   of  to   defendant,  procedure,   214,  223-224. 
Form  of  memorandum  in,  289. 
Joinder  of  debt  and,  see  Debt,  Action  of. 
Non-joinder  of  defendants  in,  effect  of,  see  Parties. 
See  also  Limitation  of  Actions,  Process,  Replevin,  Verdicts. 

DILATORY  PLEAS 

See  Pleading. 

DISCONTINUANCE 

See  Dismissal  and  Nonsuit. 

DISMISSAL  AND  NONSUIT 

Nonsuit,  596-599. 

Meaning  of  term  as  generally  used,  596. 
Meaning  of  term  as  used  in  Virginia,  596. 
As  bar  to  subsequent  action,  596. 
When  resorted  to,  object  and  purpose,  596-597. 

To  avoid  adverse  verdict  which  would  be  res  judicata,  597. 

Verdict  on  different  state  of  pleadings  as  res  judicata,  597. 
Time  for   suffering,  597. 
Where  counterclaim  set  up,  597. 
Right  to  suffer  in  general,  conditions,  597. 
.Discontinuance,  598,  873-874. 

Failure  to  sign  judgment  where  plea  only  partial  defense, 
598. 

At  rules,  powers  of  court  at  next  term,  598. 
Compulsory  non-suit  when  allowed,  598-599. 

As  bar  to  subsequent  action,  598. 

Directing  a  verdict  as  preferable  course,  598. 

In    Virginia,    598-599. 

Motion  to  dismiss  for  failure  to  prosecute,  rule  to  speed, 

599. 
Withdrawing  a  juror,  599. 

When  this  method  of  dismissal  resorted  to,  599. 

Discharging  jury  because  of  surprise  at  trial,  599. 
For  failure  to  file  pleading  or  to  prosecute   action,  256-257, 
260,   274-275. 


INDEX  1071 

[References  are  to  pages.] 
DISMISSAL  AND  NONSUIT— Cont'd. 
Retraxit,  589-590. 

Definition  of,  589. 
Form  of  order  in  case  of,  589-590. 
How  differs  from  nonsuit,  590. 
How  entered,  590. 
Effect  of  entry,  590. 
Action  "dismissed  agreed"  as,  590. 
Discontinuance  of  case  as,  590. 
Disclaimer  in  pleading  as,  590. 
Dismissal,   after  verdict,   of  action   against   one   joint   tortfeasor, 

see    Parties. 

See   also  Demurrer   to   Evidence,  Limitation    of   Actions,   Payment, 
Rules  and  Rule  Days. 

DISTRESS 
Defined,  2. 

Nature  and  scope  of  remedy  by,  2. 
Damages  done  by  cattle  damage  feasant,  2. 
Common  law  rule,  2-3. 
Virginia  and  West  Virginia  rule,  3-4. 

To  enforce  the  collection  of  taxes  and  officers'  fee  bills,  3-4. 
For  the  collection  of  rent,  see  Landlord  and  Tenant. 
See  also  Remedies. 

DIVORCE 

See  Process. 

DOMICILE 

See  Attachments. 

DOWER 

See  Homesteads. 

DUPLICITY 

For  general  discussion  of,  see  Pleading  and,  334-336,  350,  892-909. 

EASEMENTS 

See  Ejectment. 

EJECTMENT 

Historical,  192. 

Ejectment  at  common  law,  192-194. 

Fictitious  nature  of  action,  proceedings,   192-194. 

"John    Doe"    and    "Richard    Roe,"    192-194. 

Tolling  right  of  entry,  193. 

Lay  only  by  a  tenant  for  a  term  of  years,  192-193. 


1072  INDEX 

[References  are  to  pages.] 
EJECTMENT— Cont'd. 

Ejectment  in  Virginia,  193-195. 
Tolling  right  of  entry,  193. 
Limitation  of  suits,  193-194. 
Action  takes  place  of  old  writ  of  right,  194. 
Right  of  entry  no  longer  prerequisite,  194. 
Plaintiffs,    194-195. 

All   fictions  abolished,   194. 

Action   between   real   parties   in   interest,   194-195. 

When  and  by  whom  action  brought,  in  general,  195. 

Interest   and   right  of  recovery,   necessity   for,   195. 

Joint   tenants,   etc.,    195. 

Beneficiary   in    trust   deed,    195. 

Trustee    in    deed   of   trust,    195. 
Plaintiff's  title,  195-199. 

Own   legal   title   basis   of  action,   195. 

Comparison   of  titles,   195. 

Effect    of    outstanding    title,    195-196. 

Interest,  legal  title,  and   right  to   recover,   196. 

Unsatisfied  mortgage   or  deed  of  trust,   effect,   196. 

Acquiring  title  after  action   brought,  196. 

Nature   of  title   to   be   shown,    196-197. 
Grant   from   Commonwealth,   196. 
Adverse   possession,    196. 
Title    from    common    source,    196-197. 

As   against   mere   stranger  or   squatter,   198. 

Landlord   and  tenant,   198. 

Purchaser   against   grantee   in   unrecorded   deed,   198-199. 
Adverse   possession,    197-198. 

Essentials   of,    197. 

Surface  and  mineral   rights,   197. 

Vendee,   debtor,   and   deed   unrecorded,    197. 

Joint  tenants,  etc.,  197-198. 

Landlord  and  tenant,  198. 

Nature   of  title   acquired  by,   198. 

As   basis   for   ejectment,   198. 
What   may   be   recovered,   199. 

General  rule,  199. 

Easement    or    license,    199. 

Streets,    199. 

Railway    roadbed    or    right-of-way,    199. 

Right  to   quarry  and  remove   stone,   199. 

Rents  and  profits,  199. 

Waste,  199. 


INDEX  1073 

[References  are  to  pages.] 

EJECTMENT— Confd. 

Ejectment   in   Virginia — Cont'd. 

Defendants   in   ejectment,   199-200. 
General  rule,  199-200. 
Possession  of  defendant,  200. 
Object    of   action,   200. 
Claimant  of  title,  200. 

Joinder    with    occupant,    200. 
Premises    vacant,    200. 
Possession,   remedy   of   plaintiff   in,   200. 

Possession  of  surface  only,  200. 
Pleadings  in  ejectment,  200-204. 

How  action   commenced,  201,   288-289. 

Form  of  declaration  and   notice,  201. 

How  rents,  profits  and  damages  claimed,  201. 

For  what  time  recovered,  204. 
Description   of  premises  in   declaration,  201-202. 
Statement  of  nature  of  estate  claimed,  202. 
Joinder  of  counts  and  plaintiffs,  202. 
Defenses,  how  made,  202. 
Demurrer,  202. 
Plea  in  abatement,  202. 
Plea  of  not  guilty,  scope,  202. 
Equitable    defenses,    202. 
Improvements,  204. 

When  allowed  and  how  claimed,  204. 
Computation  of  value  of,  204. 
Venue  of  action,  200. 

Equitable  defenses,  what  allowed,  202-203. 
Parol  disclaimer  as  defense,  203. 
Equitable  estoppel  as  defense,  203. 
Office  judgment  in,  when  final,  203. 
Evidence   in   ejectment,   204-205. 

Exterior  boundaries,  exceptions  from  grant,  burden  of  proof. 

204-205. 

Locating  boundaries,  best  evidence,  205. 
Declarations  of  deceased  persons,  205. 
General  reputation  and  tradition,  205. 
Adverse  possession,  general  reputation  to  prove,  205. 
Statute  of  limitations,  206. 

What  is  the  limitation,  193-194. 
Infants  and  insane  persons,  206. 

Infancy  of  one  joint  tenant  or  tenant  in  common,  effect 
of,  206. 

—68 


1074  INDEX 

[References  are  to  pages.] 

EJECTMENT— Confd. 

Statute   of   limitations — Cont'd. 

Married  woman,  206. 

Action  to  recover  common  law  lands,  206. 

A  muniment  of  title,  pleading,  206. 
Interlocks,   entry  on  part  claiming  whole,   206. 
Equity  jurisdiction,  206-207. 

Bills  of  peace  enjoining  frequent  actions,  206-207. 

Where  remedy  at  law  adequate  and  complete,  207. 

Quieting   title   by   removing   clouds   from,   200,   207. 
Who  may  invoke  aid,  207. 

Equitable   defenses,   202. 
Verdict,  207-208. 

Joint,  where   action   against   several,   207. 

Must  be  specific,  207-208. 

Must  show  premises  recovered,  207. 

Must  specify  estate  found  in  plaintiff,  207-208. 

Contrary  to  the  evidence,  setting  aside,  203. 

Excessive,  procedure,  203-204,  207. 

For  undivided  interest,  whole  claimed,  207. 

For  distinct  parcels  held  in  severalty  or  jointly,  207-208. 

For  specific  or  undivided  part  or  share,  208. 

For  and  against  whom,  in  general,  208. 

Where  right  proved  to  all  premises  claimed,  208. 

Part  or  share  recovered,  description  of,  208. 

Undivided  share  or  interest  of  whole,   specification,  208. 
Of  part   of  premises,   208. 

What  sufficient  finding  of  fee   simple  title  in  plaintirT,  537. 
Judgment,  208. 

Conclusiveness  of,  208. 

When  plaintiff's  right  expires  before  trial,  208. 

Saving  in  favor  of  infants  and  insane  persons,  208. 

For  distinct  parcels  held  in   severalty  or  jointly,  207-208. 
As  superseded  by  trespass  to  try  title,  see  Trespass. 
Bill   of  particulars   in,   see  Pleading. 

Contrasted  *with   Unlawful  Entry  and  Detainer,  see  that  title. 
See  also  Demurrer  to  Evidence,  Judgments,  Limitation  of  Actions, 
Process,  Rules  and  Rule  Days,  Verdicts. 

ELECTION  OF  REMEDIES 

Actions  to  recover  statutory  penalties,   89-91. 
Actions  on  judgments  and  decrees,  92-93. 
Election   between   trespass  and   case,   see    Trespass. 
Between  trover  and  conversion  and  trespass,  see  Trover  and  Con- 
version. 


INDEX  1075 

[References  are  to  pages.] 

ELECTION  OF  REMEDIES— Cont'd. 

Waiving  tort  and  suing  in  assumpsit,  see  Assumpsit,  Action  of. 
See  also  Demurrer,  Limitation  of  Actions,  Mechanics'  Liens. 

EMINENT  DOMAIN 

Whether  legislative   or  judicial   power,   38,  742-743. 
Damages,  right  of  appeal  as  to,  38,  742-743. 
See  Appeal  and  Error,  Counties,  Courts. 

EMPLOYERS'   LIABILITY   LAWS 

See  Master  and  Servant. 

EQUITY 

Remedy  of  plaintiff  in  possession  to  remove  cloud  from  title, 
200,  207. 

Proposed  revision  of  federal  equity  rules,  268. 

Equity  rules  in  Federal  Courts,  effect  of  State  statutes  on,  387. 

Equitable  defenses  in  ejectment,  see  Ejectment. 

Issues  out  of  chancery,  see  Motions  after  Verdict. 

Jurisdiction   in  ejectment,   see  Ejectment. 

See  also  Attachments,  Interpleader,  Judgments,  Limitation  of  Ac- 
tions, Mechanics'  Liens,  Rules  and  Rule  Days,  Set-Off  and  Counter- 
claim. 

ESTOPPEL 

See   Bills   of   Exception,   Limitation    of   Actions,   Mechanics'    Liens. 

EVIDENCE 

See  Bills  of  Exception,  Death,  Demurrer  to  Evidence,  Ejectment, 
Instructions,  Libel  and  Slander,  Limitation  of  Actions,  Malicious 
Prosecution,  Motions  after  Verdict,  Trial,  Verdicts. 

EXECUTIONS 

Execution  must  follow  judgment,  625. 

Nature  and  purpose  of  the  writ  of  fieri  facias,  625. 

Effect  of  variance,  625. 

Joint  judgments,   625. 

Judgments   at   different   dates  against   several  jointly   bound, 

625. 
Issuance  of  executions,  625-629. 

When  duty  of  clerks  ex  officio  to  issue,  625. 
Right  of  assignor  of  judgment  to  control,  625. 
Finality  of  judgment  as  affecting,   625-626. 
Before  end  of  term  at  which  judgment  rendered,  626. 
Effect   on   control   of   court   over  judgment,    626. 
On  office  judgments,  control  of  court  over,  626. 


1076  INDEX 

[References  are  to  pages.] 

EXECUTIONS— Cont'd. 

Issuance  of  executions — Cont'd. 

When   court  will  direct  issuance  forthwith  for  cause,  626. 
Number  of  executions,  costs,  626-627. 
Number  of  satisfactions,  626-627. 
Preventing  abuses  as  to,  626-627. 

Endorsement  on  by  officer,  necessity  for,  penalty,  627. 
When  returnable,  627. 
Limitation  on   issuance,  627-628. 
Scire  facias  to  revive,  627. 
Motion  for  new  execution,  627. 
Validity  of  first   execution   when   issued  after   one  year. 

627-628. 
What   constitutes    issuance,   execution    marked    "to   lie,"    389, 

400,  628. 

Scire  facias   against   personal    representative,   limitation,    628. 
Death  of  sole  plaintiff  or  defendant,  effect,  628. 
Death  of  one  of  several  plaintiffs  or  defendants,  effect,  628. 
Survivorship  as  applied  to  parties  to  executions,  628. 
Effect  of  execution  issued  in  contravention  of  agreement,  628- 

629. 
Property  not  subject  to  levy,  629-635. 

Executions  which  can  not  be  levied  on  any  property,  629. 
Public  property,  629. 

Property  of  quasi  public  corporations,  629. 
Applications  to   legislature,   629. 

Executions  against  executors  and  administrators,   629-632. 
Right  to  levy  on  assets  of  decedent,  629-632. 
Effect   of  judgment   as    simply    establishing  plaintiff's    claim, 

630-632. 

Common  law  rule,  630-631. 
Time    for   taking  judgment    against   personal    representative, 

630. 
Duty    of   personal    representative    to    sell    property    and    pay 

debts,  631-632. 

Enjoining  sale   under   execution,   632. 
Executions  against  a  defendant  who  is   dead,   631-633. 

Death   before  judgment,  judgment  as  void  or  voidable,   631. 
Right  to  levy  execution  issued  after  death,  631-632. 
Death  before  return  day  but  after  issuance,  632. 
Death  before  issuance,  632-633. 

Death  of  plaintiff  after  issuance  but  before  return  day,  633. 
Receivers,  633. 

Disturbing  order  of  distribution  of  trust  fund,  633. 


INDEX  1077 

[References  are  to  pages.] 

EXECUTIONS— Cont'd. 
Receivers — Cont'd. 

Effect  of  judgment  against,  633. 
Virginia  rule,  633. 

Property  not  liable  to  levy  for  any  execution,  633. 
Poor  debtor's   exemptions,  633. 
Homestead  exemptions,  633. 
Property  of  municipal  corporations  and  counties,  633. 

Appeal  to  governing  body  to  make  levy,  mandamus,  633. 
Railroads  and  quasi  public  corporations,  633-634. 

Property  essential  to  exercise  of  corporate   franchise,  or  to 

discharge  of  duties  to  public,  633-634. 
Other  property,  634. 

Roadbed  and  rolling  stock  of  railroad  company,  634. 
Property  actually  employed  in  interstate   commerce,  634. 
Conflict   of  authority,   Virginia  rule,  634. 
Choses  in  action,  635. 

Lien  of  execution  on  such  property,  enforcement  of,  635. 

Life  insurance  policies,  635. 
Executions  against  principal  and  surety,  635-636. 

Right  of  creditor  to  collect  his  debt  out  of  either,  635. 
Satisfied  execution  as  functus  officio,  635-636. 
Substitution  or  subrogation  of  surety  at  law,  636. 

Surety's  remedy  against  principal,  636. 
Subrogation  in  equity,  636. 

Showing  in  return  by  whom  execution  satisfied,  636. 
Duty  of  officer,  636-637. 

General  duties  as  to  endorsements,  levy,  return,  etc.,  636-637. 
Provisions  of  the  Virginia  statute,  637. 
The  levy,  637-645. 

Mandate  of  writ  and  return  day  thereof,  637. 

In  what  cases  real  estate  may  be  levied  on,  637. 

What  constitutes  a  levy,  637-638. 

Necessity  for  actual  seizure,  637-638. 

Goods  in  view  and  power,  638. 

Goods  in  view  only,  638. 

Property   in   receiver's   hands,   necessity   for   actual   levy, 

638. 

Tangible    property,    sufficiency    of    constructive    posses- 
sion, 638. 

Mere  paper  levy,  effect  of,  639. 
Unwieldy  goods  and  growing  crops,  639. 
Waiver  of  actual  levy  by  debtor,  effect,  639. 
Goods  left  in  possession  of  debtor,  liability  for,  639. 
Fraudulent  removal  by  debtor  as  crime,  639. 


1078  INDEX 

[References  are  to  pages.] 

EXECUTIONS— Cont'd. 
The  levy — Cont'd. 

Right  to  enter  upon  debtor's  premises,  639. 

Breaking  doors,  639. 

Property  in  personal  possession  of  debtor,  639,. 

Chattels  real,  640. 

Emblements,    growing   corn,   potatoes,    cotton,    640. 

Fixtures,  what  are,  640. 

Right  to  make  on  Sunday,  640. 

Right  to  execution  and  bill  in  chancery  at  same  time,  640. 

Money,  641. 

Effect  of  whether  legal  tender,  641. 

In  possession  of  defendant,  641. 

In  hands  of  sheriff  under  another  execution,  641. 
Partnership   property,   641. 

Taking  exclusive  possession  of  chattels   of  firm,  641. 

Interest  of  execution  debtor  as  affecting  levy  and  sale,.  641. 

Purchaser  as  partner,  641. 

Sale   as   dissolving   firm,   641. 

Delivery  upon  sale,  641. 

Levy  on  part  of  effects  only,  641. 
Mortgaged  property,   642-644. 

General  rule  as  to  right  to  levy,  642. 

Equitable    relief   in    such    cases,    642. 

Virginia  rule,  and  rule  of  reason,  642-644. 

Chattel  mortgage  to  secure  future  advances  on  property 

to  be  acquired,  642-644. 

Goods  removed  from  leased  premises,  644. 
Shares  of  stock,  644-645. 

In  joint  stock  company,  644. 

In   corporation,  644. 
Levy  after  return  day,  effect,  644. 
Sale  after  return  day,  644. 

Death  of  plaintiff  or  defendant,  effect  on  levy,  631-633,  644-645. 
Loss   of  property  after  levy,  effect,   645. 
Several   executions,  645. 

Order  of  delivery  to  officer  as  determining  priorities,  645. 
Conflicting  claims,  indemnifying  bond,  645. 

Preference   given   indemnifying  creditor,   645. 

Interpleader  proceedings,  645. 
Payments  to  and  disbursements  by  officer,  646. 
When  officer  entitled  to  receive  payment,  646. 
Effect  of  unauthorized  receipt  of  payment,  646. 
Duty  of  officer  to  make  disbursement,  646. 

Where   creditor  lives   in   another   county   or  corporation, 
646. 


INDEX  1079 

[References  are  to  pages.] 

EXECUTIONS— Cont'd. 

Payment  by  officer  for  debtor,  646-647. 
Effect  on  execution  as  security,  646. 
Right  of  officer  to  purchase  execution,  646-647. 
Sale  of  property,  647-648,  649-650. 
Advertisement,  in  general,  647. 

In   cases  of  horses,  mules  and  work  oxen,  647. 
Place  of  sale,  647. 

Expenses  of  keeping  or  removing  property,  647. 
Where   property  perishable   or  expensive   to   keep,   647. 
Terms  of  sale,  and  duties  of  officer  after  sale,  647. 
Who  may  purchase  at  sale,  648. 
Title  of  purchaser,  649-650. 

Application  of  rule  of  caveat  emptor,  649. 

What  title  passes,  649. 

When  indemnifying  bond  given,  649-650. 

Action  on  by  purchaser,  650. 
The  return,  648-649. 

Return  defined,  648. 

What   return   sufficient   to   keep  judgment  alive,   648. 

Presumptions  as  to  validity  of,  648. 

Effect  of  return  before  or  after  return  day,  648-649. 

Conclusiveness  of,  648. 

Right  to  compel,  648. 

Statutory  provision   for,   648. 

Signature  of  the  officer,  648. 

Amendment  of  returns,  649. 

By  officer  after  return  to  clerk's  office,  649. 

Allowance  of  by  court,  effect,  649. 

Time  for,  649. 

By  other  than  officer  who  made  original  return,  649. 

In  vacation,  649. 

Return  of  no  effects  before  return  day,  649. 
Delivery  bond,  650-653. 

Right  of  debtor  to  give,  650. 

Effect  of  on  the  ft.  fa.,  650. 

Disposition  of  property  when   given,  650. 

Penalty  of  bond  and  security,  650. 

Recitals  of,  650. 

Condition   of,   650-651. 

Forfeiture  of,  651. 

Partial  delivery  of  property,  effect  of,  651. 

Excuses  for  non-delivery,  651. 

Delivery  of  part  excused,  failure  to  deliver  residue,  651. 

Effect  on  execution  of  forfeiture,  651-652. 


1080  INDEX 

[References  are  to  pages.] 

EXECUTIONS— Cont'd. 
Delivery  bond — Cont'd. 

Return  of  forfeited  bond  by  officer,  651-652. 
Force  of  forfeited  bond  as  judgment,  652. 

Issuance  of  execution  thereon,   652. 
Proceedings  on  forfeited  bond,  652. 

Defenses,  652. 

Forfeited  bond  as  satisfaction  of  original  judgment,  652-653. 
When  plaintiff  restored  to  his  original  judgment,  652-653. 
Endorsement  on  fi.  fa.  issued  on  forfeited  bond,  653. 
Interpleader  proceedings,  653-654. 

Property  in  possession  of  execution  debtor  claimed  by  third 

person,  653. 

What  required  of  claimant  of  property,  653. 
Possession  of  property  pending  trial  of  title,  653. 
Property  not  in  possession  of  execution  debtor  claimed  by  third 

person,  653-654. 

Interpleader  by  officer,  653-654. 
Indemnifying  bond  by  plaintiff,  654. 

Effect  of  failure  to  give,  654. 
Suspending  bond  by  claimant,  654. 
Interpleader  by  plaintiff  or  claimant,  654. 
When  judgment  creditor  may  obtain  new  execution,  654. 
The  lien  and  its  commencement,  655-656. 
On  what  property  a  lien,  655-656. 

Personal  property  in  general,  leviable  or  not,  655. 
Choses   in  action,   655-656. 
Assignee's  of  or  payers  to  judgment  debtor  without   notice, 

655-656. 

Property   acquired    after    issuance    of   execution,    655-656. 
Commencement  of  lien,  655-656. 
At  common  law,  655. 

From  delivery  to  officer  to  be  executed,  655-656. 
Delivery  with  direction  not  to  levy,  656. 
Endorsement  by  officer  on  execution,  656. 
Territorial  extent  of  lien,   656-658. 
Tangible  property,  656-657. 

Rule  that  it  extends  throughout  county  only,  656-657. 

Rule  that  it  extends  throughout  State,  657. 

In  Virginia,  limited  to  county  of  officer  receiving  fi.  fa., 

657. 
Lien  a  levy  lien,  commencement  of  in  different  counties. 

657. 
Intangible   property,   657-658. 

Practice  as  to  fi.  fa.   and   garnishments,   657. 


INDEX  1081 

/ 
[References  are  to  pages.] 

EXECUTIONS— Cont'd. 

Territorial  extent  of  lien — Cont'd. 
Intangible  property — Cont'd. 
Lien  not  a  levy  lien,   657. 
Extends    throughout    State,    657-658. 
Duration  of  lien,  658-659. 
Tangible  property,  658. 

Where  no  levy,  limited  to  return  day,  658. 
Where  there  is  a  levy,  658. 

Death  of  defendant  after  levy  but  before  sale,  effect, 

658. 

Effect  of  abandonment  of  levy,  658. 
Intangible  property,  658-659. 

Continues  during  life  of  judgment,  658. 
Keeping  lien   perpetual,   658. 
As  affected  by  debtor's  death,  658. 
As  affected  by  return  day  of  execution,  658. 
Priority    over    subsequent    execution    with    first    garnish- 
ment, 658. 
Necessity    for    reviving    against    personal    representative, 

time    for,    658-659. 
When  lien   ceases,   659. 
Sufficiency  of  return   to   extend   lien,   659. 
Execution  issued  in  contravention  of  agreement,  effect,  659. 
Rights  of  purchaser,  659-660. 
Tangible  property,  659. 

When  levy  is  actually  made  in  time,  659. 
When  no  levy  is  made,  659. 
Lien  extended  not  created  by  levy,  659. 
Intangible  property,  659-660. 

Assignees  for  value  without  notice,  659-660. 
Deed  of  trust  creditor,  knowledge,  relation   back  of  ac- 
ceptance, 660. 

Antecedent  debt  as  valuable   consideration,   660. 
Effect  of  fraudulent  intent  of  insolvent  assignor,  660. 
Protection  of  one  making  payment  to  execution  debtor, 

660. 
Lien  created  by  fi.  fa.  and  not  by  notice  or  garnishment, 

660. 

Liability    arising    after    notice    or    garnishment    but    be- 
fore return  day,  660. 
Form  of  notice  required,  660. 
Mode  of  enforcing  the  lien,  661-664. 
Tangible  property,  661. 

Advertisement  and  sale,  disbursement,  661. 
Excessive  levy  or  sale,  liability  of  officer  for,  661. 


1082  INDEX 

[References  are  to  pages.] 

EXECUTIONS— Cont'd. 

Mode  of  enforcing  the  lien — Cont'd. 
Intangible  property,  661-664. 

Issuance  of  summons  in  garnishment,  its   mandate,  661. 

When  returnable,  661. 
Procedure  on  summons  in  garnishment,  in  general,  661- 

662. 
No   occasion   for   garnishment   where   property   tangible, 

662. 
Proceedings  to  subject  fraudulently  transferred  tangible 

property,  662. 
Application  of  payment  by  garnishee  when  not  sufficient 

to  pay  entire  execution  and  cost,  662. 
How    garnishee's  indebtedness  shown,   662. 
Serving  summons  in  garnishment  on  debtor,  defense  by 

him,  662. 

Procedure   where    garnishee's    liability    not    due,    662-663. 
Protection    of    garnishee    as    to    negotiable    paper,    663. 
Garnishment   against   executors   and   administrators,   663. 
Garnishment  against  corporation,  663. 
Time  of  acquiring  property  as  affecting  lien,  663. 

Extent  of  time  as  to  which  garnishee  must  answer, 

663. 

Situs   of  a   debt   for  purpose   of   garnishment   or  attach- 
ment,  663-664. 
Whether  determined  by  residence  of  creditor  or  of 

debtor,   663-664. 
Rule  in  Virginia,  664. 

Penalty  for  seeking  to  subject  exempt  wages,  664. 
Protection   of  garnishee  against  twice  paying  debt,   664. 
Property  undisclosed,  664-668. 

Interrogatories  to  debtor,  665-668. 

Nature  of  and  procedure  on,  in  general,  665,  668. 
Form  of  order  and  of  summons  by  judge,  666-667. 
Disposition   made   of  property  disclosed,  666-668. 
Compelling  conveyance  and  delivery,  666-668. 
Mode  of  procedure  against  non-residents  who  owe  exe- 
cution debtor,  668. 

Remedy  against  debtor  about  to  quit  State,  668. 
Non-resident  debtor,  668-669. 

Right  to  levy  on  his  property  within  State,  668. 

Personal  attachment  against  debtor  "about  to  quit  the  State" 

and  holding  him  to  bail,  668-669. 
General  procedure  in  such  cases,  669. 


INDEX  1083 

[References  are  to  pages.] 
EXECUTIONS— Cont'd. 

Beneficial  owner  of  judgment,  endorsement  as  to  on  execution, 

669. 
Motion  to  quash,  669-671. 

By  whom  heard  and  determined,  669-670. 

Staying  proceedings  on  execution  pending  motion,  670. 

When  proper,  670. 

Time  for  motion  and  by  whom  may  be  made,  671. 

Effect  on  first  ft.  fa.  of  quashing  second  one,  671. 

Amending  return,  671. 

Not  necessary  where  judgment  vacated  or  annulled,  671. 
Venditioni  exponas,  671-673. 

Definition,  671. 

When  proper,  671-672,  673. 

When  peremptory  sale  ordered  by,  672. 

Powers,  in  Virginia,  of  deputy  after  death  of  principal,  672. 

Effect  of  death  of  officer  leaving  no  deputy,  672. 

Procedure   to   obtain   writ,    mandamus,   672. 

Nature  of  writ  and  reasons  for  its  issuance,  672. 
In  Detinue,  see  that  heading. 

On  judgment  against  Court  Receiver,  see  Parties. 
See  also  Attachments,  Homesteads,  Interpleader,  Judgments,  Justices 
of  the  Peace,  Limitation  of  Actions. 

EXECUTORS  AND  ADMINISTRATORS 

Retainer,  right  of  defined,  33-34. 

Abolished  in  Virginia,  34. 
Order  of  payment  of  debts  of  decedent,  34. 
Personal  estate,  will  of  debtor  as  changing  order  of  liability  of 

for  debts,  34. 

How  as  to  real  estate,  34-35. 
Order  of  liability  of  estate  for  debts,  35-36. 

As  between  personal  and  real  estate,  35. 

As  between  United   States  and  a  State,  35. 

Partnership  debts,  35. 
Fiduciary  debts,  what  are,  35. 
Voluntary  bonds,  enforcement  of  payment,  35. 
Voluntary  notes,  enforcement  of  payment,  35. 
Assets,  proper  mode  of  marshaling,  35-36. 

Submission   to  arbitration   by  personal   representative,   see   Arbi- 
tration and  Award. 

See  also  Appeal  and  Error,  Attachments,  Courts,  Executions,  Judg- 
ments, Limitation  of  Actions,  Parties. 


1084  INDEX 

[References  are  to  pages.] 

EXEMPTIONS 

Poor  debtors'   exemption. 

As  an  exemption  in  addition  to  the  homestead,  807. 

What  articles  are  exempt,  807,  809. 

Wages  of  laboring  man,  807. 

Meaning  of  terms  "householder"  and  "laboring  man,"  807. 

Necessity   for    claimant    to   be    householder   and    resident   of 

State,  807. 

Selection  of  articles  by  householder,  807-808. 
Right  to  substitute  other  articles,  807-808. 
Effect  on  right  of  death  or  consumption  of  article,  808. 
Death    of    householder,    what    exempt    and    who    may    claim, 

808-809. 
Rights  of  widow,   minor  children  and   single   daughters, 

808. 

The   exemption   as   an   absolute   one,  808. 
Rights    of    widow    where    no    minor    children    or    single 

daughters,  808. 

Dead  victuals  and  live  stock,  808. 
Rights    of  widowed   daughters,   or   single   daughters   not 

members  of  the  household,  808-809. 
Against  what  claims  exemption  not  allowed,  809. 
When  payments  in  installments  on  insurance  policies  exempt, 

809. 

Subjecting  wages  of  minor  for  debts  of 'his  parents,  809. 
Garnishment  outside  of  State  of  wages  of  laboring  men,  809. 
Power    of   householder   to    dispose    of    or   encumber    exempt 

articles,  809. 

Right  of  householder  to  waive  exemption,  810. 
Where    householder   allows   forced   sale,   rights   against   pur- 
chaser, 810. 

Injunction  to  prevent  sale  or  garnishment,  810. 
See  Attachments,  Executions,  Homesteads. 

EXTRAORDINARY  LEGAL  REMEDIES 

See  Certiorari,  Mandamus,  Prohibition,  Quo   Warranto. 

FALSE  IMPRISONMENT 

Form  of  action  to  recover  for,  230. 

Defined,  230-231. 

Malice  and  want  of  probable  cause,  materiality  of,  231. 

Compared  with  malicious  prosecution,  231. 

Special  damages,  allegation  and  proof,  231. 

Joinder  with   slander,  libel,  and   malicious  prosecution,  231. 

See  also  Action  on  the  Case,  Malicious  Prosecution,  Trespass. 


INDEX  1085 

[References  are  to  pages.] 
FENCES 

What  is  a  lawful  fence,  2-4. 
At  common  law,  2-3. 
Usually  defined   by   statute,  3. 
In  the  absence  of  statute,  3. 
In  Virginia,  3-4. 

Liability  of  one  having  no  fences  for  damage  done  by  trespass- 
ing cattle,  see  Distress. 

FIERI  FACIAS 

See  Executions. 

FINES 

See  Homesteads. 

FIXTURES 

See  Executions. 

FORCIBLE  ENTRY  AND  DETAINER 

See  "Unlawful  Entry  and  Detainer." 

FORMS 

See  Appeal  and  Error,  Attachments,  Homesteads,  Mechanics'  Liens, 
Pleading   (Rules  of  Pleading),  and  other  specific  titles. 

FRANCHISES 

See  Executions,  Mechanics'  Liens. 

FRAUD 

See  Limitation  of  Actions,  Malicious  Prosecution. 

FRAUDULENT  CONVEYANCES 
Voluntary  conveyance,  386-387. 

Setting  aside  when  debt  not  due,  lien,  386. 

Jurisdiction  to  set  aside  equitable,  387. 

Procedure  in  Federal  court,  lien,  387. 
See  Executions,  Homesteads,  Limitation  of  Actions. 

GARNISHMENT 

When  returnable,  297. 

See    Attachments,   Executions,   Exemptions,   Justices    of    the   Peace, 
Mechanics'  Liens. 

GENERAL  ISSUES 

See  Debt,  Action  of,  and  other  specific  titles. 


1086  INDEX 

[References  are  to  pages.] 
GROUNDS  OF  DEFENSE 

See  Pleading,  Debt,  Action  of. 

GUARDIAN  AND  WARD 

Validity   of   submission   to   arbitration   by  guardian,   see   .•  I  rbit ra- 
tion and  Award. 
See  also  Clerks  of  Courts,  Courts,  Limitation  of  Actions. 

HABEAS  CORPUS 

Original  jurisdiction  of  Court  of  Appeals  in,  see  Appeal  and  Er- 
ror, Courts. 

HOLIDAYS 

See  Process. 

HOMESTEADS 

What  is  a  homestead,  786. 
Policy  of  homestead  laws,  786. 
History  of  Virginia  statute,  787-788. 

Power  of  legislature  to   enact  homestead  law,  787. 

The  former  Virginia  statutes,  787. 

Estate  created  simply  an  exemption,  787. 

Changes    made   in    former   law   by   present    constitution    and 

existing  statutes,  787-788. 
Powers  of  legislature  as  to  homestead,  788. 
Constitutional  provisions,  788-789. 

Power  of  legislature  to  increase  homestead  or  extend  right 

to,  788-789. 

Right  of  State  to  create  as  against  prior  debts,  789. 
Who  may  or  may  not  claim  the  homestead,  789-793. 
Householder  or  head  of  a  family,  789-790. 
Synonymy  of  terms,  789. 
What  necessary  to  constitute,  789-791. 
What  constitutes  a  family,  789-791. 
Whether  married  woman  may  be,  790. 
Necessity  of  residence  in  State,  791. 
For  whose  benefit,  791-792. 

Primary  object  provision  for  family,  791-792. 
Whether  householder  himself  is  beneficiary,  792. 

Effect  of  family  ceasing  to  exist,  792. 
Nature  of  exemption  as  estate  or  privilege,  792-793. 
What  may  be  claimed,  787-788,  793. 
Nature  of  property,   787,  793. 
Value   of  property,   793. 
Nature   of   interest   in   estate   claimed,   793. 


INDEX  1087 

[References  are  to  pages.] 

HOMESTEADS— Cont'd. 

What  may  be  claimed — Cont'd. 

Shifting  stock  of  merchandise  may  not,  787-788,  793. 
How  after  surrender  to  trustee  in  bankruptcy,  788. 
How  where  goods  intermingled  by  bankrupt,  788. 
In  property  whose  conveyance  has  been  set  aside  for  fraud 

or  want  of  consideration,  787-788,  793. 

In  proceeds  of  exchanged  or  converted  property  where  orig- 
inal property  not  paid  for,  787. 
How  and  when  to  be  claimed,  794-795. 

The  homestead  deed  and  its  recordation,  794. 

Description  of  property  and  its  cash  valuation,  794. 

Form  of  homestead  deed,  794. 

Death   of  householder  without   having  set   apart   homestead, 

794-795. 

Petition  by  widow  and  minor  children,  794. 
Homestead   deed   by  widow    or   minor   children,   794-795. 
Time   for  claiming  exemption,   795. 

Asserting  for  first  time  in  court  of  appeals,  795. 
Effect  of  homestead  on  debts  or  claims  of  creditors,  795-798. 
Against  what  demands  homestead  may  not  be  claimed,  795- 

796. 

Who  deemed  to  be  a  "laboring  man,"  796. 
When   officers  and   fiduciaries  may  not  claim,  795,  796. 
When   attorneys   at  law   may   not   claim,  795,  796. 
Whether   homestead    may   be    claimed    against    liabilities    for 

torts,    796-797. 
How    determined    whether    demand   in    contract   or    tort, 

797. 

Against   damages   for  breach  of  contract,  797. 
Against  demand  for  taxes  asserted  by  surety  of  officer,  797. 
Against  a  fine  due  the  United  States,  797. 
Where  homestead  has  been  waived,  797. 
Right   of  widow   to   claim   against   heirs.   797-798. 

Where  no  debts,  797-798,  803. 
Right  of  heir  to  bar  her  claim  by  paying  debts,  798. 

Effect    of    whether    homestead    claimed    in    life  time   of 

husband,  798. 

Waiver  of  the  homestead,  799-801. 
How  it  may  be  waived,  799. 

Time  of,  before  or  after  exemption  claimed,  799. 
Effect  of  waiver,  799. 

Whether  new  constitution  affects  right  of,  799. 
Form  of  waiver,   799. 

Waiver  on  face  of  non-negotiable  paper  not  applicable  to  as- 
signor thereof,  799-800. 


1088  INDEX 

[References  are  to  pages.] 

HOMESTEADS— Cont'd. 

Waiver  of  the  homestead — Cont'd. 

Right  of  partner  to  waive  as  to  firm,  800. 

Waiver  on  face  of  bond,  not  available  against  principal  when 

surety  pays  bond,  800. 
Distinction   between  waiver  and  alienation   or  encumbrance, 

800. 
Judgment    and    execution    on    waiver    paper,    or    superior    to 

homestead,   to   recite   fact,   800-801. 
Effect   on   judgment   of   erroneous    statement   of   waiver, 

801. 
Prior  liens,  801. 

Where  prior  security  created  by  party's  own  act,  mortgage, 
deed  of  trust,  pledge,  priority  between  and  homestead,  788, 
801. 

Priority  between  prior  judgment  and  homestead,  788,  801. 
Effect   of   will    of    householder,    801-803. 

Whether  by  will  he  can  deprive  widow  and  minor  children 

of  homestead,  801-802. 

Right  of  widow,  who  has  received  dower  or  jointure,  to  home- 
stead, 802. 

As  to  real  estate  of  householder,  802. 
As   to  personalty  of  householder,  802. 
Rights  of  minor  children,  802. 
Where  she  receives  neither,  joint  application  by  widow 

and    children,    802. 
Where  she  receives  either,  application  by  children  only, 

802. 
Right  to  claim  in  personalty  when  children  have  claimed 

in   real   estate,   802. 

Exemption  of  homestead  from  debts  of  widow  and  chil- 
dren,  802. 
Whether  widow  can  claim  two  homesteads,   one  in  property  of 

deceased   husband  and   one   in   her   own,   802-803. 
Deed  of  trust,  mortgage  or  conveyance,  803. 

Whether  execution  of  as  to  real  estate  by  married  man  alone 

valid,   803. 

As  to  personal  property,   803. 
Power  over  homestead,  803. 

Power   of   alienation    and    encumbrance,    803. 
No  security  will  be  required  for  forthcoming  of  exempt  prop- 
erty at  cessation  of  homestead,  803. 
Liens  in  ini'itum  do  not  attach  during  homestead  period,  803. 


INDEX  1089 

[References  are  to  pages.] 
HOMESTEADS— Cont'd. 

Income,  increase  and  betterments,  803-804. 

Effect  of  increased  value  not  caused  by  improving  real  estate, 

803,  804. 
Value    enhanced    by     permanently     improving    real     estate, 

whether  creditor  may  subject  excess,  804. 
Exemption  of  crops  raised  on  homestead  land,  804. 
Whether  increase  of  personal  property  exempt,  804. 
Excessive  homestead,  how  creditor  may  subject  excess,  804. 
How  claims  superior  to  homestead  enforced,  804-805. 

Marshaling  assets  where  part  of  property  exempt,  804-805. 
How  in  case  of  specific  lien   such  as  mortgage  or  trust 

deed,    805. 
Cessation    of    homestead,    805-807. 

Under  what   circumstances  the   exemption   ceases,   805-806. 
What    becomes    of    exempt    property    on    cessation,    806. 
When  lien  of  judgment  or  decree  attaches  and  to  what,  806. 
Effect   of   householder   surviving  family,   806. 
Running    of    statute    of    limitation    against   judgment    during 

homestead  period,   806-807. 
See  Attachments,  Exemptions.,  Executions,  Judgments. 

HUSBAND    AND    WIFE 

See  Ejectment,  Exemptions,  Homesteads,  Limitation  of  Actions,  Par- 
tics,  Process. 

IMPROVEMENTS 

See  Ejectment,  Homesteads,  Judgments,  Mechanics'  Liens,  Trespass. 

INFANTS 

Actions  by  and  against,   see  Parties. 

Service  of  process  on,  see  Parties. 

As  defendants  in  actions  ex  delicto,  see  Parties. 

Garnishment    of   wages    of    for    debt   of   parent,    see   Exemptions, 

Justices  of  the  Peace. 
Validity    of    submission    to    arbitration    by,    see    Arbitration    and 

Award. 
See  also  Ejectment,  Exemptions,  Homesteads,  Limitation  of  Actions, 

Parent  and  Child,  Process. 

INJUNCTION 

See  Executions,  Exemptions,  Limitation  of  Actions. 

INSANE   PERSONS 

Actions  by  or  against,  see  Parties. 
—69 


1090  INDEX 

[References  are  to  pages.] 
INSANE  PERSONS— Cont'd. 

Submission   to   arbitration   by   committee   of,   see  Arbitration  and 

Award. 

See  also   Courts,  Ejectment,  Libel  and  Slander,  Limitation   of  Ac- 
tions, Process. 

INSTRUCTIONS 

Object  of  instructions,  499. 
Charging  the  jury  generally,  500-503. 

Practice  in  England  and  the  Federal  courts,  500. 

Practice  in  Virginia,   500,   501. 

Instructions  by  court  sua  sponte,  500. 

Expression  of  opinion  by  court,  500. 

Duty  to  amend   erroneous   or  equivocal   instruction,   500-502. 

Where  point  is  a  vital  one  in  the  case,  502-503. 
Nature,   construction   and   effect  of  instructions,  503-504. 
Instructions   assuming  facts,   503. 
Read  in  light  of  evidence,  supplying  defects,  503. 
Erroneous  instruction,   correct  verdict,   effect,   503-504. 
Abstract  propositions — partial  view  of  case,  504. 
Scintilla  doctrine,  504-505. 
Sufficiently  instructed,  505. 
Conflicting  instructions,   505-506. 
Conflicting  evidence,  506. 
Directing  a  verdict,  506-507. 
General  rule,  506. 
Virginia  practice,  506. 
Tendency  of  modern  cases,  506-507. 
Virginia  statute,  507. 
Law  and  fact,  507-508. 

Relative  functions  of  court  and  jury,   507-508. 

Instruction    erroneous,    correct    verdict,    effect,    507. 
Referring  legal  question  to  jury,  507-508. 
Foreign  laws,  508. 
Written  instruments,  508. 
Court's  opinion  on  the  evidence,  508. 
General  rule  as  to  giving,  508. 
Virginia  rule  as  to  giving,  508. 
Oral  or  written,  509. 
Time  of  giving,  509-510. 

As  regulated  by  statute,  509. 
Before  argument,  509. 
Discretion  of  court,  509. 
Order  of  reading  to  jury,  509-510. 
West  Virginia  rule,  509-510. 
Virginia  rule,  510. 


INDEX  1091 

[References  are  to  pages.] 

INSTRUCTIONS— Cont'd. 

Multiplication  of  instructions,  510. 

Find  for  the  plaintiff  or  defendant,  510-511. 

Essentials  of   such  a  binding  instruction,   510-511. 

When   instruction   should  be  alternative,  511. 
Inviting  error,  effect,  511. 
How  instructions  are  settled,  511-512. 

Procedure  in  general,  511-512. 

Opening  and   conclusion   of  argument,   512. 

Exceptions  to  courts  rulings,  necessity  for,  512. 
See  Appeal  and  Error,  Bills  of  Exception,  Motions  after   Verdict, 
Verdicts. 

INSURANCE 

Pleading  on  insurance  policies,  955-956. 

Recovery  by  motion,  see  Proceedings  by  Way  of  Motion. 

See  also  Executions,  Exemptions,  Mechanics'  Liens,  Process,  Venue. 

INTEREST 

Claiming  in  declaration,  see  Debt,  Action  of. 

See    also    Appeal   and   Error,    Attachments,   Limitation    of   Actions, 
Payment,  Verdicts. 

INTERPLEADER 

Nature  of  the  proceeding,  215. 
Statutory,  215. 

Interpleader  in  equity  not  abolished,  215. 
As  substitute  for  replevin,  215. 
Object  of  proceeding,  215. 
To  whom  available,  215. 

Rights  of  officer  where  property  levied  is  claimed  by  third  per- 
son, 215-216. 

May   demand  indemnifying  bond,  215-216. 
Condition  of  such  bond,  215-216. 
Effect  of  bond,  215. 
If  no  bond  given,  215-216. 
May  interplead,  216. 
Procedure,  216. 
Form  of  petition,  216-217. 
Usual  reason  for  interpleading,  216. 
Rights  of  creditor,  217. 

May  give  indemnifying  bond,  217. 
May  interplead,  217. 


1092  INDEX 

[References  are  to  pages.] 
INTERPLEADER— Cont'd. 

Rights  of  claimant,  217-219. 

Property    in    possession    of    execution,    etc.,    debtor,    217-219. 
Must  give  suspending  bond  and  interplead,  217-218. 
Effect  of  failure  to  give  bond  and  interplead,  217-218. 
Forthcoming  bond,  retaining  possession  by,  218-219. 

Property  expensive  to  keep  or  perishable,  219. 
Proceedings  by  the  court,  219. 

Application,  writing,   oath,  219. 
What  application   should  contain,  219. 
Who  summoned  to  interplead,  219. 
Order  of  interpleader,  219. 
Plaintiff  and  defendant,  who  are,  trial,  219. 
General  jurisdiction   of  court,   219. 
No  memorandum  in,  289. 
See  Executions,  Process. 

INTERROGATORIES 

See   Attachments,  Executions. 

JOINT-STOCK  COMPANIES 

See  Executions. 

JOINT  TENANCY 

See  Ejectment. 

JUDGES 

Power  of  in  vacation  to  appoint  guardian  or  curator,  45. 

See  Bills  of  Exception,  Courts,  Judgments,  Justices  of  the  Peace. 

JUDGMENT  NON  OBSTANTE  VEREDICTO 

See  Motions  after  Verdict. 

JUDGMENTS 

Classification  of,   interlocutory  or   final,   for  property   or   money, 

604. 

Scope  of  treatment  in  this  work,  604. 
Definition,  604. 
Judgments  as  liens,  605-607. 
At   common   law,   605. 
The  writ  of  elegit,  its  history,  nature,  use  and  abolition,  605- 

606. 
Modern   statutory  lien   of,   606-607. 

Lien  as  dependent  on  nature  of  estate,  606. 
Lien  as  limited  by  interest  of  debtor,  606-607. 

Transitory    seizin,    conveyance    to    trustee,    606-607. 
Improvements  and  betterments,  607. 


INDEX  .  1093 

[References  are  to  pages.] 
JUDGMENTS— Cont'd. 

Commencement  of  the  lien,  607-611. 
At  common  law,  607. 

Date  of  commencement  of  lien,  607-608. 
Judgments   rendered   in   court,   607-608. 

Tabulated    statement    of    statutory    changes,    607-608. 
Relation  back,  607-608. 
Judgments  or  decrees  in  vacation,  608. 

Tabulated  statement  of  statutory  changes,  608. 
Relation   back,  608. 

Provisions  of  present  Virginia  statutes,  608-609. 
Time  for  docketing  as  against   subsequent  purchasers   for  value 

and   without   notice,   609. 

Tabulated   statement   of  statutory   changes,   609. 
Order  of  satisfaction  of  liens,  609-611. 

Judgments  against  same  person  at  same  term,  609. 
Judgments   rendered   and   judgments   by   confession,   609-610. 
Judgments  in  proceeding  by  motion,  609-611. 
Judgments  in  vacation  upon  confession,  610-611. 
Provisions  of  the  present  Virginia  statute,  610. 
Reasons  for  former  rule  of  relation  back,  611. 
Duration  of  lien,  611-612. 

In  general,  methods  of  perpetuating,  611-612. 
Effect  of  fi.  fa.  kept  in  clerk's  office  marked  "to  lie,"  611. 
Effect  of  death  of  judgment  debtor,  611-612. 
Execution  in  contravention  of  express  agreement,  effect,  612. 
Right  of  debtor  to  waive  bar  of  statute,  612. 
Docketing,  612-614. 

Object  and  purpose  of,  612. 
Necessity  for  indexing,  612-613. 

Effect  of  mistake  or  inaccuracy  in,  use   of  initials,  612- 

613. 

Use  of  "same"  under  name  of  judgment  debtor  as,  613. 
Judgments  in' favor  of  Commonwealth,  necessity  for,  613. 
Where,  in   case   of  city  subsequently   carved   out   of  county, 

613. 

Abstract  of  judgment  as  evidence  of.  613. 
Scire  facias  to  revive  judgment,  effect  of  docketing  as   con- 
structive  notice,   613-614. 

Nature  and  object  of  scire  facias  to  revive  judgment,  613. 
Judgments  against  executors,  administrators  and  trustees,  614. 
When  such  judgments  are  personal,  614. 
Method  of  determining  whether  personal,  614. 
As  creating  liens  on  decedent's  real  estate,  614. 


1094  INDEX 

[References  are  to  pages.] 
JUDGMENTS— Cont'd. 

Claim  of  homestead  against  judgments,  614-615. 

When  and  to  what  part  of  homestead  lien  of  judgment  at- 
taches, priorities,  614-615. 

Where  homestead  accrues  after  judgment,  614. 
Homestead  as  suspending  statute  of  limitations  as  to  judg- 
ment, 615. 
Instruments  having  the  force  of  judgments,  615. 

Delivery  bonds,   recognizances,   necessity  for  docketing,  615. 
Death  of  debtor,  615. 

Occurring  after  service  of  process  but  before  judgment,  ef- 
fect on  judgment  or  decree,  615. 
Priority  of  judgments  inter  se,  615-616. 

How  determined  as  between  judgment  creditors,   615. 
Docketing  as  affecting,  against  whom  required,  615-616. 
Where  recovered  at  same  time,   615-616. 
Where  confessed  at  different  times  on  same  day  in  vacation, 

616. 

As  to  after-acquired  real  estate,  616. 

One  judgment  as  merging  or  destroying  lien  of  another,  616. 
Partial   release   of  lien   by  one  judgment   creditor,   effect   on 

his  rights,  616. 

Lands  subjected  in  inverse  order  of  alienation,  616. 
Judgments  of   Federal   courts,  616-618. 

How  far  liens  on  property  in  State  of  rendition,  616-617. 
When  necessary  to  docket,  and  where  docketed,  617-618. 

Judgments  of  Circuit  Court  of  Appeals,  618. 
Virginia  statute  as  to  docketing,  618. 
Foreign  judgments,  618. 

Extra-territorial  effect,  618. 
As  foundation  of  actions,  618. 

Judgment  of  old   State,  where   new   State  cut  from  its  ter- 
ritory, 618. 
Collateral  attack,  619. 

Not  permissible,  what  constitutes,   619. 
Common  way  of  directly  assailing,  619. 
Where  judgment  absolutely  void,  619. 
Void  judgments,  619. 

What  are,  collateral  assault,  619. 

Judge  disqualified  by  reason  of  interest,  effect,  619. 
Satisfaction  of  judgments,  619-620. 

By  principal  debtor  or  surety,  effect  on  lien  in   either  case, 

619-620. 
Limitation  on  suits  for  subrogation,  620. 


INDEX  1095 

[References  are  to  pages.] 

JUDGMENTS— Cont'd. 

Satisfaction  of  judgments — Cont'd. 

Marking  satisfied  on  judgment  docket,  620. 

Entry  where  more  than  one  defendant,  620. 
When  duty  of  clerk  to  mark  satisfied,   620. 
When  duty  of  judgment  creditor,  time,  manner  and  pen- 
alty, 620. 

Proceedings  by  judgment  debtor  to  obtain,  620. 
Order  of  liability  of  lands  between   different  alienees,  620-622. 
Lands  subjected  in  inverse  order  of  alienation,  620-621 
Provisions  of  Virginia  statute,  620-621. 
Between  alienees  who   are  volunteers,   621. 
Between  alienees  for  value  and  volunteers,  621. 
Real    estate    retained    by    debtor,    621. 
Several  lots  sold  at  same  time  or  on  same  day,  621.    ' 

Effect   of  conveyance   at   different   times,    621. 
Effect  of  sale  for  value  by  volunteer,  621-622. 
Enforcement  of  judgments,  622-623. 
By  fieri  facias,  622. 
Against  real  estate,  622-623. 
Bill  in  equity,  622. 
When  sale  proper,  622. 

When  rents  and  profits  subjected,  procedure,  622. 
Effect  of  death  of  judgment  debtor  on  right,  622. 
Judgment    not    exceeding   $20.00,    notice    necessary,    622- 

623. 
Where  right  to  issue  execution  or  bring  scirc  facias  or 

action    barred,    623. 

Effect  of  against  one  of  several  joint  wrongdoers,   19. 
Merger  of,  92. 

By  non  sum  informatits,  what  is,  261. 
Confessing,  when  and  by  whom  done,  261,  292. 
Office  judgment,  263-277. 
What  is,  263. 
When  entered,  263-266. 

Filing  writing  sued  on  in  clerk's  office,  practice,  266. 
Effect  of  clerk's  putting  in  wrong  place  on  docket,  266-267. 
When    becomes    final,    266,    275-276. 
Special  terms,  275. 

No   endorsement   of  rules   on   papers,   275-276. 
Judgment  in  ejectment,  276. 
Setting  aside,  procedure  in  general,  275-276. 
Powers  of  court  after  judgment  final,  276. 
Proceedings  after  judgment  final,  effect,  267,  276. 
By  dilatory  pleas,  276. 


1096  INDEX 

[References  are  to  pages.] 

JUDGMENTS— Cont'd. 

Office  judgment — Cont'd. 

Setting  aside,  procedure  in  general — Cont'd. 
By  a  general  demurrer,  276. 
By  agreement  of  counsel,  276. 
Waiver,   276. 

Compelling  defendant  to  plead,  277. 
Election  of  defendant  as  to  when  he  will  plead,  277. 
Judgment   by    default    on    a   scire   facias   or    summons,   when 

final,  277. 
What  entered  on  issue  of  fact  made  by  dilatory  plea,  277-279. 

Sole  issue  one  of  fact  and  found  for  plaintiff,  278-279. 
What  on  a  demurrer  to  a  plea  in  abatement,  278. 
Signing  judgment  as  by  nil  dicit,  873-874. 
Action    by   motion    on    decree    of    domestic    chancery    court,    see 

Proceedings  by  Way  of  Motion. 

Against  court   receiver,   effect  of,  and  how  payable,   see  Parties. 
Against  married  woman,  effect  of,  see  Parties. 
Against  whom  on  motion  for,  see  Proceedings  by  Way  of  Motion. 
As  subject  of  accord  and  satisfaction,  see  Accord  and  Satisfaction. 
Assumpsit  to  enforce,   see  Assumpsit,  Action  of. 
Effect  of  against  one  joint  tprtfeasor,  see  Parties. 
In  Ejectment,  see  Ejectment. 

Pleading  nil  debet  in  action  on,  see  Debt,  Action  of. 
Pleading  nul  tiel  record  in  action  on,  see  Debt,  Action  of. 
See  Accord  and  Satisfaction,  Appeal  and  Error,  Attachments,  Bank- 
ruptcy,  Demurrer,  Demurrer   to   Evidence,   Election   of  Remedies, 
Executions,  Homesteads,  Justices  of  the  Peace,  Limitation  of  Ac- 
tions,  Mechanics'   Liens,   Motions    after    Verdict,    Process,    Prohi- 
bition,   Quo    Wairranto,   Replevin,   Rules   and   Rule   Days,    Tender, 
Trover  and  Conversion,  Verdicts. 

JURY 

Who  are  competent  to  serve  as  jurors,  470. 

Exemptions,   470. 
Qualifications   of  jurors,   470-471. 

Physical   qualifications,  470-471. 

Prejudice,  bias,  interest  or  relationship,  471. 

Examining  as  to,  471. 
Selection  of  jurors,  471. 
Objections  to  jurors,  471-473. 

Time  for  471-472. 

Mode  of  ascertaining  disqualification,   472. 

Irregularities  in  drawing,  etc.,  472. 


INDEX  1097 

[References  are  to  pages.] 

JURY— Cont'd. 

Challenges,  472-473. 

Classification  of,  472. 

Grounds    for   challenging,    472-473. 

Interrogation   as   to    qualifications,   473. 

Number  of  peremptory  challenges,  473. 
Special  juries,  473. 

How    selected,   473. 
Oath  of  jurors,  473-474. 

Where  issue  joined,  473. 

Executing  writ   of  inquiry,   473-474. 

Sworn  to  try  issue  where  none,  effect,  474. 
Trial  by  jury,  474-475. 

Constitutional  provisions,  474-475. 

Number  constituting  jury,  475. 

Waiver  of  jury,  475. 
Custody  and  deliberations  of  the  jury,  475-478. 

Keeping  jury  together,  475. 

Adjournment  of  jury,  475. 

Effect  of  misconduct  during,  475. 

Carrying  depositions  and  papers  read  in  evidence  from  bar, 

475-476. 
Disagreement  of  the  jury,  476-477. 

Withdrawing  a  juror.  476-478. 

Adjourning  jury  from  day  to  day,  476. 

Discharging  the  jury,  476-477,  478. 

Coercing  verdict,  477. 

Right  to  discharge  in  case  of  accident  or  surprise,  477-478. 
Misconduct  of  jurors,  478. 

See  Appeal  and  Error,  Demurrer  to  Evidence,  Dismissal  and  Non- 
suit, Instructions,  Motions  after  Verdict,  Verdicts. 

JUSTICES  OF  THE  PEACE 

Civil  powers  of  justices,  39-40. 
Acknowledgments,   39. 
Affidavits,  39. 
Small  claims,  39-40. 

Scope  of  jurisdiction,  39. 

Compelling  "sworn   defense,"  39. 

Removal   of  case,  39-40. 

Security  on  removal,  40. 

Trial   on   removal,   40. 

Principles  governing  trial  on  removal,  40. 

Correction   of  errors   on   removal,   40. 

Construction  of  statute,  40. 


1098  INDEX 

[References  are  to  pages.] 

JUSTICES   OF  THE   PEACE— Cont'd. 

Proceedings  before  a  justice  on  small  claims,  40-43. 
The  warrant,  its  issuance,  execution  and  return,  40. 
Time  of  trial,  40. 

Associating  additional  justices,  40-41. 
Entering  up  judgment,  41. 
New  trial,  41. 
Stay  of  execution,  41. 
Appeals,  41-42. 
Time  for,  41. 
Where  to,  41-42. 
Jurisdictional  amount  for,  41. 
Security,  41. 

Costs,  right  to   demand  on,  41. 
Cattle-guard  cases,  41. 
In   case  involving  validity  of  city  ordinance,  where   to, 

41-42. 

How  tried,  42. 

Execution,    issuance,    direction,    service    of,    return    and    re- 
newal, 42. 

Endorsement  on  when   case  affirmed  on  appeal,  42. 
Distress  warrant,  42-43. 
How  issued,  42. 
Amount  of,  42. 
Trial,  42. 
Defenses,  42-43. 

Civil  bail,  what  is,  and  when  required,  43. 
Attachments,  43,  683-684,  690-691. 

Against  debtor  removing  effects  out  of  State,  43,  683-684. 
Where  returned,  43. 

Against  tenant  removing  effects  from  leased  premises,  43,  685. 
Claims   of  under  twenty   dollars,  43,   690-691. 
Unlawful  detainer,  jurisdiction  in,  43-44. 
Garnishment  on  justice's  judgments,  44. 

Of  minor's  wages  for  debt  of  parent,  44. 

Length  of  notice  required  in  warrant  against  receiver,  see  Parties. 
See  also  Appeal  and  Error,  Attachments,  Ccrtiorari,  Courts,  Prohi- 
bition, Unlawful  Entry  and  Detainer. 

LANDLORD  AND  TENANT 

Distress  for  rent,  4-15. 
Nature  of,  4. 

At  common  law,  4. 

At  present  time,  4. 
Rent  proper,  what  is,  4-5. 


INDEX  1099 

[References  are  to  pages.] 

LANDLORD  AND  TENANT— Cont'd. 
Distress   for   rent — Cont'd. 

How   rent  is  recovered,  4. 

Rent  must  be  reserved  by  contract,  5. 

Holding  over,  5. 

Notice  to  terminate  tenancy,  5-6. 
In  what  States  remedy  used,  6. 
Distress  warrant,  6. 

Nature  of,  6. 

Return  of,  6. 
Interest  on  rent,  6. 

At  common  law,  6. 

In  Virginia,   6. 
Limitation  of  time  to  distrain,  6. 

At  common  law,  6. 

In  Virginia,   6. 
By  whom  distress  warrant  levied,  6-7. 

At  common  law,  6-7. 

In   Virginia,  7. 

Issuance  of  distress  warrant,  by  whom,  7. 
How  warrant  is  obtained,  7. 
Method  of  its  levy,  7. 

At  common  law,  7. 

In   Virginia,  7. 
Irregularity  or  illegality  in  making  distress,  7-8. 

Effect  of  at  common  law,  7. 

Effect  of  in  Virginia,  7-8. 
Disposition  of  property  levied  on,  8. 

At  common  law,  8. 

In  Virginia,   8. 
Delivery  or  forthcoming  bond  and  proceedings  thereon,  8-10. 

Nature  and  condition  of  bond,  8-9. 

Forfeiture  and   return,  9-10. 

Enforcement  of  penalty  of  bond,  9-10. 

Defenses,  9. 

When  tenant  unable  to  give   bond,   10. 

When  rent  reserved  in  share  of  crop,  10. 
What  property  may  be  distrained,  11-12. 

At  common  law,  11. 

In  Virginia,  11-12. 
Redress  for  illegal  distress,  12. 

At  common  law,  12. 

By   statute,   12. 
A  year's  rent  under  the  Virginia  statute,   12  14. 


1100  INDEX 

[References  are  to  pages.] 

LANDLORD  AND  TENANT— Cont'd. 
Distress   for    rent — Cont'd. 

Motion  on  delivery  bond — proof,  14-15. 
Effect  of  general  covenants  to  repair,  15.  ( 

At  common  law,  15. 
In  Virginia,  15. 
Abatement  of  rent,  15. 
When  apportioned,  15. 
When  abated,  15. 

Estoppel  of  tenant  to  deny  title,  940. 
Remedy    against    tenant    holding   over,    see    Unlawful   Entry   and 

Detainer. 

See    also    Attachments,    Clerks    of   Courts,   Ejectment,   Interpleader, 
Justices  of  the  Peace,  Limitation  of  Actions,  Replevin,  Trespass. 

LIBEL  AND  SLANDER 

What  words  are   slanderous  or  libelous,  248-249. 

Classification  of  words  slanderous  at  common  law,  248. 
What  words  slanderous  per  se,  248. 
When    special   damage   necessary,   248. 
Insulting  words   under  Virginia   statute,  248-249. 

Application  of  statute,  249. 

Publication  of  words,  necessity  for,  249. 
What  is  a  libel,  249. 
Parties,  249. 

Joinder  of  defendants  in  slander  and  in  libel,  249. 
Joinder  of  plaintiffs  in  slander,  249. 

Partnership,  249. 

Slander  of  class  of  persons,  249. 

Corporations  as  defendants  in  slander  and  in  libel,  249. 
Insane  persons  as  defendants,  249. 
The   declaration,  249-251. 

Allegations  in  when  action  for  insulting  words,  252. 
Joinder   of  common   law   and    statutory   slander,   249-250. 
Setting  out  exact  words,  250. 

Words  in  foreign  language,  250. 

The   averment,   meaning  an^   application   of  term,   250-251. 
The   colloquium,   meaning   and   application    of  term,   250-251. 
The  innuendo,  meaning  and  application  of  term,  250-251. 
Demurrer  to,  252. 
Malice,  251-252. 

Allegation  and  proof  of,  necessity  for,  251. 
Use  of  term,  251. 

Thoughtlessly  repeating  a  slander,  251. 
Article  copied  in  newspaper,  251. 


INDEX  1101 

[References  are  to  pages.] 

LIBEL   AND    SLANDER— Cont'd. 
Malice — Cont'd. 

When  express  or  actual  malice   must  be   shown,  251-252. 
Effect  of  privileged  communication  on  proof,  251-252. 
Defences,  252-254. 

Justification,  how  pleaded,  253-254. 

When  truth  may  not  be  shown,  254. 
Apology  to  plaintiff,  254. 
Good  faith  and  absence  of  malice,  253. 
Bad   general   character   of  plaintiff,   253. 
Good  character  of  defendant,  253. 
Privileged   communications,  253-254. 
What  are,  253. 

Necessity  for  good  faith  and  relevancy,  253. 
Conduct  of  public  officers,  253. 
Effect   of   showing,  253-254. 
Demurrer  to  evidence,  252. 

Effect  of  Virginia  statute,  252. 

Waiver   of  benefit   of   statute,   252. 
General  issue,  252-253. 

What  is,  and  defenses  provable  under,  252-253. 
Special  pleas,  when  necessary,  252-253. 
Justification,  252-254. 

To  show  truth  of  like  slanderous  words  not  pleaded,  254. 
Evidence,  254-255. 

Like  slanderous  words,  when  shown,  254. 
Time  and  place  of  speaking,  254. 
Proving  words   charged,  equivalent  words,  254. 
Bad  general  character  of  plaintiff,  253,  254-255. 
Good  or  bad  character  of  defendant,  253. 
General  good  character  of  plaintiff,  255. 
Expressions  of  regret,  255. 
Apology  by  defendant,  254-255. 
Replication,  255. 
Form  of  memorandum  in,  289. 
See  Action  on  the  Case,  Demurrer,  Process. 

LIBERUM  TENEMENTUM,  PLEA  OF 

See  Pleading  (Rules  of  Pleading),  and  932-934. 

LICENSES 

See  Ejectment. 

LIENS 

See  Attachments,  Fraudulent  Conveyances,  Homesteads,  Judgments, 
Limitation  of  Actions,  Mechanics'  Liens,  Tender,  Vendor  and 
Purchaser. 


1102  INDEX 

[References  are  to  pages.] 
LIMITATION  OF  ACTIONS 
Historical,  377-378. 
At  common  law,  377-378. 

Statute  as  one  of  presumption  or   repose,  378. 
Liberal  construction  of  statutes,  378. 
Nature,  effect  and  validity  of  statute,  378-380. 
Exceptions  to  rule  must  be  in  statute,  378. 
Limitation  of  remedy,   378-379. 

Most   usual   limitation,   378-379. 
Power  of  legislature  over,  378-379. 
Effect  of  repeal  of  statute  after  bar  attached,  379. 
Limitation  of  right,  378-379. 
Defined,  379. 
Time   as  essence   of  right,  pleading  and  proof,  350,   379, 

406. 

Loss  of  right  by  non-assertion,  379. 
Adverse  possession,  378-380. 

Object  and  effect  of  statutes,  380. 
As  vested  right,  380. 
Conventional  limitations,  380. 
Validity  of,  380. 
Validity  of  stipulation  by  carrier  for  claim  of  loss  within 

specified  time,  380. 
Parties  affected,  380-381. 
In    general,    380. 
The  State,  380-381. 

County   governments  and   municipalities,   380-381. 
Hospitals  for  the  insane,  381. 
When  suit  brought  by  in  another  State,  381. 
When  the  statute  begins  to  run,  381-395. 
In  general,  381. 

(1)  Demand   paper,   381-382. 
General  rule,  381-382. 

What  instruments  are  payable  on   demand,   382. 

Paper  payable  after  demand,  382. 

Paper  payable  at  or  after  sight,  382. 

As  against  endorsers,  382. 

Where  demand  necessary  before  action,  382. 

When  interest  on  begins,  382. 

(2)  Bank  deposits,  382-383. 

(3)  Coupons,  383,  396. 

(4)  Calls  on  stock,  383. 

Call  by  both  company  and  court,  383. 

Call  by  court  only,  383. 

On  parol   stock  subscription,  383. 


.INDEX  1103 

[References  are  to  pages.] 

LIMITATION   OF  ACTIONS— Cont'd. 

When  the  statute  begins  to  run — Cont'd. 

(5)  Cloud  on  title,  383. 

(6)  Covenant  for   general  warranty,  383. 

(7)  Death  by  wrongful  act,  383-384. 

Statutes  as  giving  new  and  independent  cause  of  action, 

383-384. 

In  Virginia,  384. 
Where    decedent    survives    injury    more    than    year    and 

day,  384. 

Decedent's  right  barred,  effect  on  statutory  action,  384. 
Under  Federal   Employers'   Liability  Act,  384. 
Statute  as  giving  more  than  one  cause  of  action,  384. 
Election  between  new  action  or  revival  of  old  one, 
384. 

(8)  Fraud  and  mistake,  384-386. 

Whether  from  commission  of  fraud  or  its  discovery,  384- 
386. 

Rule   at   law,  384-386. 

Rule  in  equity,  386. 
Effect  of  mere  ignorance,  386. 
Mutual  mistake,  385. 
Money  paid  under  mistake  of  law,  right  to  recover,  386. 

(9)  Malicious  abuse  of  civil  process,  386. 

(10)  Voluntary    conveyances,    386-387. 
General    rule,   386. 

In  Virginia,  386. 

Procedure  where  debt  not  due,  lien,  386. 

Where  there   is   actual  fraud,  386-387. 
Jurisdiction  to  set  aside  equitable,  387. 
Procedure  in  Federal  court,  lien,  387. 

(11)  Accounts,  387-388. 

As  depending  on  terms  of  sale,  custom,  387. 

Store  accounts,  387-388. 

Extending  time   by   account   rendered,   388. 

Necessity  for  writing  of  debtor  or  agent,  388. 

What  is  account  stated,  388. 
Mutual  accounts,   nature  of  action,  388. 

(12)  Debt  acknowledged  in  a  will,  388. 

(13)  Judgments,    388-389. 

Lien  of  judgment  in  Virginia,  how  perpetuated.  388-389. 

Against  judgment   debtor  who   dies,   388-389. 

When  execution  deemed  issued,  389. 
Suit  on  barred  judgment,  389. 


1104  INDEX   . 

[References  are  to  pages.] 

LIMITATION   OF  ACTIONS— Cont'd. 

When    the   statute   begins   to   run — Cont'd. 

(14)  Nuisance,   389. 
Where   recurrent,   389. 

(Where  permanent,  389. 

(15)  Partners,   389-390. 
Actions  between,  389-390. 

(16)  Principal   and   surety,   390-391. 
General  rule,  390. 
Limitation  applicable,  390. 

Payment  by  surety  before  maturity,  390. 
Surety's  notice  to  creditor  to  sue,  390. 
Relief  of  surety  from  liability,   390. 
Actions  by  endorser  against  principal,  390-391. 

(17)  Co-sureties,    390-391. 

(18)  Principal   and   agent,   391. 

Where  agency  general  or  continuing,  391. 
Where  agency  isolated  or  special,  391. 
As  trust  relationship,  391. 

(19)  Attorney   and   client,   391-393. 

Right   of  attorney   to   plead    statute,   391-392. 
General  rule  in  the  absence  of  fraud,  392. 
For   money   collected   by   attorney,   392-393. 

Duty  to  give  notice  to  client,  392. 

Necessity  for  demand  by  client,  392-393. 
Damages  for  non-payment,  392-393. 

(20)  Express    trustees,    executors,    administrators,    guardians, 

etc.,  393. 

Actions   on   their  bonds,   393. 
Personal  actions,  393. 
When  fiduciary  has  settled  account,  393. 

(21)  Tenant  and   co-tenant.   393. 

Where  one  tenant  has  paid  more  than  his  share  of  pur- 
chase money,  393. 
Necessity  for  ouster  or  its  equivalent.  393. 

(22)  Landlord    and    tenant,    394. 

(23)  Vendor   and    purchaser,   394. 

(24)  Assignor    and    assignee,    394. 

Where  assignee   defeated  in   suit  against  debtor,  394. 
Where  assignee  prevails  in  suit  against  debtor,  394. 

(25)  Persons  under  disability,  394-395. 

Legislative  power  to  omit  saving  clause  as  to,  effect,  394. 
Married    women,    394-395. 
.     "Tacking"  disabilities,  394-395. 
The  Virginia  statutes,  395. 


INDEX  1105 

[References  are  to  pages.] 
LIMITATION   OF  ACTIONS— Cont'd. 
What  limitation  is  applicable,  395-399. 

(1)  Tort  or  contract,  395-396. 

Object  not  form  of  action  governs,  395. 

Merely   personal   injuries,  395. 

Test  of  whether  actions  is  for  tort  or  contract,  395-396. 

(2)  Cases  on  contract,  396. 

Election  of  one  concurrent  remedy,  finality  of,  396. 
Limitation  as  following  remedy  selected,  396. 

(3)  Debt  assumed  by  grantee  in  a  deed,  396. 

(4)  Coupons,   396. 

(5)  Debt  secured  by  mortgage,  deed  of  trust  or  pledge,  397. 
Debt  barred,  right  to  enforce  lien,  397. 

Giving  security  as  renewal  of  debt,  397. 

Debt  barred,  enforcing  against  collateral  security,  397. 

(6)  Lien  for  purchase  money,  397. 
General  rule,  397. 

In  Virginia,  397. 

When  title  retained  as  security,  397. 
Presumption  after  twenty  years,  397. 
Corporation  deeds  of  trust  and  mortgages,  397. 

(7)  To  recover  damages  for  suing  out  an  injunction,  397. 

(8)  Principal  and   surety,   398. 

(9)  Death  by  wrongful  act,  398. 

(10)  Proceedings    in    Federal    courts,    398. 

(11)  Unmatured   debts,    398. 

Changes    in    statutes,    which    act    governs,    398. 
Payment  of  debt  contingent  on  payment  of  another  debt, 
when  matures,  398. 

(12)  Foreign    contracts,    398-399. 

(13)  Foreign  judgments,  399. 

What  stops  or  suspends  the  running  of  the  statute,  399-406. 
In  general,  399. 

(1)   Commencement  of  action,  399-401. 
What   constitutes,   400. 
Date   of  writ,  judicial   notice   of,  400-401. 
As  evidence  of  time  of  issuance,  401. 

Motion    to    recover    money,    when    action    deemed    com- 
menced, 171,  401. 
Effect  of  non-suit,  401. 

Dismissal  for  failure  to  file  declaration,  effect,  401. 
When  suit  abates  or  is  defeated  on  ground  not  affecting 
.    the   right  to   recover,   effect,  401-402. 
Time  of  issuance  of  alias  or  pluries  summons  as  affecting 

bar  of  statute,  290-291. 
-70 


1106  INDEX 

[References  are  to  pages.] 

LIMITATION   OF  ACTIONS— Cont'd. 

What  stops  or  suspends  the  funning  of  the  statute — Cont'd. 

(2)  Amendment  of  pleadings,  402. 

When  no  new  cause  of  action  or  claim  made  by,  402. 
When  new  cause  of  action  or  claim  is  introduced,  402. 
When  larger  damages  are  claimed  by,  402. 
When    new    parties    are    introduced    by,    402. 

(3)  Removal  from  state,  402-403. 
In   general,   402-403. 

Before  accrual  of  right  of  action  or  occurrence  of  trans- 
action involving  liability,  403. 
Temporary  absence  of  resident  defendant,  403. 

"Continuing  to   reside  without  the   state,"   403. 

Effect  of  death  before  accrual  of  right  of  action,  403. 

(4)  Infancy,  coverture  or  insanity,  403-404. 

(5)  Death,  404-405. 

In  the  absence  of  statute,  404. 
In  Virginia,  404-405. 

Time  excluded  from  computation,  404. 

Limitation  of  actions  against  decedent's  estate,  404. 

Savings  in  favor  of  personal  representatives,  404-405. 

Of  judgment  debtor,  effect  on  time  to  enforce  lien, 
405. 

(6)  The  stay-law  period   in   Virginia,  404. 

(7)  Inability    to    serve   process,   405. 

In  equity,  creditors  bill  or  account  of  liens,  406. 
How  defence  of  statute  is  made,  406-410. 
At  law,  406-409. 

Methods  in  general,  406. 

(1)  By   demurrer,   406. 

When   proper,   190,   350,   379,   406. 

(2)  By  special  plea,  406-407. 

Why  this  is  the  usual  method,  406. 
Form  of  plea,  407. 

(3)  Shown  under  the  general  issue,  407-408. 
In   ejectment  and   detinue,   407. 

Reasons  for  rule,  407-408. 

(4)  By  instructions,  408-409. 
When  permissible,  408. 

Reason  for  rule  in  case  of  set-offs  where  list  filed,  408. 

Procedure,   408-409. 
In   equity,  409. 

When  limitation  is  of  the  remedy  only,  409. 
When  limitation  is  of  the  right,  409. 
In   code   states,  409. 
Matters   of   avoidance,   410. 


INDEX  1107 

[References  are  to  pages.] 
LIMITATION  OF  ACTIONS— Cont'd. 
Who  may  plead  the  statute,  410-411. 

The  statute  as  a  personal  defense,  waiver,  407,  410-411. 
Right  of  one   creditor  to  plead  against  another,  410-411. 
Sureties,  effect  of  plea  by  one,  411. 
Fiduciaries,  duty  to  plead,  411. 
Privies  in  estate,  411. 
Strangers  to  a  claim,  411. 
New   promise   or  acknowledgment,  411-417. 
In   general,  411-412. 

Antecedent  debt  as   good   consideration   for,  412. 
The  Virginia  statute  concerning,  412. 
Effect  of  new  promise,   412-413. 

As  fixing  new  period  from  which  statute  shall  run,  412. 

Limitation  as  fixed  by  new  or  old  promise,  412. 

In  keeping  liens  alive,  412. 

Giving    security    as    reviving    personal    liability,    412. 

Effect  of  part  payment   of  principal   or  paying  interest, 

412. 

Limited  to  part  of  debt,  412-413. 

New  security  to  pay  debt  or  part  thereof,  effect,  412-413. 
Nature  of  promise  or  acknowledgment,  413-415. 
Essential  requirements,  413-415. 
No  application  to  torts,  414. 
Undelivered  writing,  414. 
Provisions  in  wills,  415. 
By  whom  promise  should  be  made,  415-416. 

(1)  By   debtor   or  agent,   415. 
Rights  of  insolvent  debtor,  415. 

(2)  By  partners  after  dissolution,  415. 

(3)  By  personal  representative,  416. 

To   whom   promise    should    be    made,    416-417. 
When  new  promise   should  be  made,  417. 
i  Waiver  and  estoppel,  417-424. 

Validity  of  agreements  not  to  plead  statute,  417-424. 
As  an  estoppel  in  pais,  417. 

When  to  allow  plea  would  operate  as  fraud,  417. 
Delay   caused  by  fraudulent   representations   or   conceal- 
ment,   417-418. 

Estoppel  by  conduct,  duration  of  estoppel,  418. 
Promise  not  made  until  after  bar  has  fallen,  418. 
Promise   contemporaneous   with   original   agreement   and 

part  thereof,  418-424. 
Reason  of  rule  holding  such  promise  valid,  419-420. 


1108  INDEX 

[References  are  to  pages.] 

LIMITATION  OF  ACTIONS— Cont'd. 
Waiver  and  estoppel — Cont'd. 

Validity  of  agreements   not   to  plead   statute — Cont'd. 
Virginia    doctrine,    420-423. 

"Promise  to  settle"  as  waiver,  420-421. 
Promise  not  to  plead  "after  a  fair  settlement,"  421. 
Promise   suspending  statute,   421-422. 
Promise  to  settle  and  pay  balance  found  due,  422-423. 
Agreements  to  waive  or  not  plead  statute,  422,  423. 
When  to  allow  plea  would  operate  as  fraud,  423. 
Stipulation  that  statute  shall  never  run  against  debt,  419, 

423-424. 

Reasons  for  holding  such   stipulation   valid,   423-424. 
When  waiver  should  be  in  writing,  424. 
Burden  of  proof,  424. 
Appeal  and  error,  424. 

Pleading  statute  in  bar  of  appeal  or  writ  or  error,  424. 
Motion  to  dismiss  as  substitute  for  plea,  424. 
Dismissal    by    court   ex   mero   motu,   424. 

Form  of  plea  of  in  assumpsit  and  of  replication  thereto,  847-848. 
When    limitations    cease    to    run    in   proceedings    by   motion,    see 

Proceedings  by  Way  of  Motion. 

See  also  Demurrer,  Ejectment,  Judgments,  Mechanics'  Liens,  Proc- 
ess, Set-Off  and  Counterclaim,  Unlawful  Entry  and  Detainer. 

LIS  PENDENS 

See  Attachments. 

LOST  INSTRUMENTS 

Loss  or  destruction   of  notes   or  bonds,   effect   on   right    to   sue, 

590-593. 

In  cases  of  destruction,  590. 
In  cases  of  loss,  590-593. 

Sealed    instruments,    591. 
At  common  law,  591. 
Rule   in   equity,   591. 
In  Virginia,  591. 
Negotiable  paper,   591-592. 
General   rule,  591-592. 
Effect  of  bar  of  limitation,  591-592. 
Non-negotiable  paper,  592. 
Summary  of  the  law,  592. 
Present  state  of  the  law  in  Virginia,  593. 
The  Virginia  statute  and  its  effect,  593. 


INDEX  1109 

[References  are  to  pages.] 
MALICIOUS   PROSECUTION 

Form  and  essentials  of  the  action,  233. 
Case  proper  form,  233. 

What   necessary  to  allege  and  prove,  233. 
Difference  between  and  false  imprisonment,  233. 
Parties,  234. 

Joint   and    several    liability,    234. 
Real   prosecutor,   liability,   evidence,   234. 
Principals'    liability    for   act    of   agent,   234. 
Actual   damages,   234. 
Exemplary  damages,  234. 
Knowledge    as    affecting    damages,    234. 
Full  delegation  of  authority,  234. 
Ratification   and   repudiation,  234. 

Corporations,   liability   for   agents'   prosecutions,   234. 
Termination  of  prosecution,  234-235. 
Form  of  immaterial,  234. 

When    prosecution    cannot    be    re-instated,    234-235. 
Where  new  proceeding  may  be  brought,  234-235. 
Search  warrant,   failure  to  find  goods,  235. 
Procuring   search  warrant  as,   235. 
Effect   of   conviction,   235. 
General    rule,   235. 

When  plaintiff  has  had  no  opportunity  to  be  heard,  235. 
When  obtained  by  fraud  or  perjury,  235. 
Guilt    of    plaintiff,    235-236. 

Conclusive    against    him,    235-236. 
Acquittal  does  not  prevent  its  being  shown,  236. 
Probable    cause,    236-238. 
Defined,   236. 

Questions  for  court  and  jury,  practice,  236. 
Test   of,    time   of   application,   236. 
Conviction   reversed   on   appeal   as   conclusive   or  prima  facie 

evidence   of,   236-237. 
Advice    of   counsel    as    proof   of,    237-238. 

Ground  of  admission  of  this  defense,  237. 
Full    disclosure    and    good    faith    required,    237. 
Duty  as  to   investigating  facts,   237-238. 
Qualifications  of  attorney,  bias,  prejudice,  238. 
Must   concur  with    malice,   238. 
Want    of   not   inferred    from   malice,   238-239. 
Burden   of  proof,  239. 
Malice,   238-239. 

Questions    for   court    and   jury,    238. 
Defined,  238. 


1110  INDEX 

[References  are  to  pages.] 

MALICIOUS   PROSECUTION— Cont'd. 
Malice — Cont'd. 

Must   concur   with   want   of  probable    cause,   238. 

Inferred   from  want  of  probable   cause,   238-239. 

Burden   of  proof,   239. 
Evidence,  239. 

Plaintiff's  previous  good  reputation,  239. 

Accuser's  ill-will  or  bad  faith,  239. 

Plaintiff's  bad  reputation,  239. 

Facts  showing  defendant's  good  faith,  239. 

Defendant's  wealth,  grounds  of  admission,  239-240. 
Damages,  239-240. 

Measure  of,  considerations  influencing,  239. 

Punitive,  when   allowed,   evidence,   239-240. 

General  rule,  239. 

Special,  what  are,  allegation  and  proof  of,  240. 
Civil  malicious  prosecution,  240. 

General   rule,  240. 

Civil  actions  injurious  to  property  rights,  240. 

Malicious  abuse  of  process,  240. 

Rules  applicable  to,  240. 
See  Attachments,  False  Imprisonment,  Limitation  of  Actions. 

MANDAMUS 

As  remedial  writ  requiring  performance  of  non-discretionary  act, 

775. 

Writ  denied  where  it  would  be  fruitless  or  unavailing,  775. 
When  writ  formerly  denied  may  be   subsequently   granted,   775- 

776. 

Where  party  has  another  clear  and  adequate  legal  remedy,  776. 
What  is  an  adequate  remedy  which  will  bar  mandamus,  776. 
Function  of  the  writ,  776. 
When  lies  for  relief  of  surety,  776. 
To    trial    court    to    enforce    performance    of    decree    of   appellate 

court,  776. 
To  compel  judge  to  sign  bill  of  exception,  776-777. 

Where  judge  has   forgotten  facts,  procedure,  777. 
Procedure  to  obtain  the  writ,  777-778. 
Procedure  at   common   law,   777. 
Procedure   under   Virginia   statute,   777-778. 

Sworn  petition,   contents  and   conclusion   of,  777. 

Notice  to  the  opposite  party,  777. 

Where  no  defense  peremptory  writ,  777-778. 

How   defense   made,  778. 

Trial  of  issues  of  fact,  778. 


INDEX  1111 

[References  are  to  pages.] 

MANDAMUS— Cont'd. 

Procedure  to  obtain  the  writ — Cont'd. 

Procedure  under  Virginia  statute — Cont'd. 
Costs,  778. 

When  judge  may  grant  in  vacation,  778. 
From    court    of   appeals,    procedure,   use    of    depositions, 

778. 

See  Appeal  and  Error,  Bills  of  Exception,  Courts,  Executions,  Pro- 
hibition. 

MARRIED   WOMEN 

See  Husband  and  Wife. 

MARSHALING  ASSETS  AND  SECURITIES 

See  Executors  and  Administrators,  Homesteads. 

MASTER  AND  SERVANT 

Virginia   Employers'    Liability    Law,   70. 

To  whom  applicable,  70. 

Effect  of,  70. 
Federal  Employers'  Liability  Act,  70. 

To  whom  applicable,  70. 

Effect  of,  70. 
See  Death,  Parties. 

MECHANICS'  LIENS 

Origin  and  development  of  the  lien,  811-812. 

A  creation  of  statute,  811. 

Reasons  leading  to  legal  provisions  for,  811-812. 

Universality  of  remedy,  811-812. 

Rules   of   construction   of   statutes   allowing,   812-813. 
Who  may  take  out  a  mechanics'  lien,  813-814. 

Persons  entitled  in  general,  813. 

Architects,  813. 

Election  of  remedies,  choice  as  binding,  813. 
Who  is  a  "general  contractor,"  813-814. 
Rights  of  assignee,  814. 
On  what  the  lien  may  be  taken  out,  814-817. 

In   general,  814. 

On  land  with  house,  814-815. 

Effect  of  destruction  of  house,  814-815. 
Small  lot  in  a  town,  815. 

Where  lumber  sold  on  general  account,  815. 

Lien  specific  and  follows  the  contract,  815-816. 

Railroads  and  their  franchises,  procedure,  816. 

Churches,  817. 


1112  INDEX 

[References  are   to  pages.] 

MECHANICS'  LIENS— Cont'd. 

On  what  the  lien  may  not  be  taken  out,  816-817. 

Unauthorized  improvements,  817. 
Interest  of  owner  as  limiting  lien,  817. 
Insurable  interest  of  lienholder,  right  of  subrogation  to  owner's 

insurance,  815. 

Recordation  of  lien  on  property  outside  city  limits,  816. 
How  lien  of  general  contractor  is  perfected,  817-821. 
The   Virginia   statute,  817-818. 
The    account,    817-819. 
Where  filed,  817-818. 
Recordation  and  indexing,  818. 
Effect  of  filing  as  notice,  818. 

Omission   of  prices   charged   for  items,  effect,   818-819. 
When   statement  of  gross  sum  sufficient,   819. 
Statement   of  payments   and   credits,   819. 
Form  of  verification,  819. 
Description  of  the  property,  818,  819. 
Statement  of  intention  to  claim-  lien,  818. 

Form  of,  and  of  account  and  affidavit,  819. 
When  claim  of  lien  to  be  filed,  819-821. 

Effect  of  filing  too  soon  or  too  late,  819-820. 

Time  estimated  from  date  of  substantial  completion,  820- 

821. 

Putting  on   "finishing  touches,"  820-821. 
Agreements    as    to    when    work    deemed    completed, 

820-821. 

When    running   account    considered    due,    821. 
Effect  of  omission  of  any  statutory  provision,  821. 
Remedies  of  sub-contractor,  821-824. 
Independent   lien,   821-822. 

Following  procedure  required  of  general  contractor,  821. 

Notice  to  owner,  its  contents  and  form,  821,  822. 

As  limited  by  amount  due  general  contractor  by  owner, 

821-822. 
When  notice  must  be  given  to  general  contractor,  821- 

822. 

Limitation  on  amount  of  lien  of  sub  sub-contractor,  822. 
On  extra  work  not  covered  by  original  contract,  822. 
Liability  of  owner  who  fails  to  retain  a  percentage,  822. 
Personal  liability  of  the  owner,  822-824. 

Notice  to  owner,  its  form  and  contents,  822-823. 

When   notice  may  be  given,  822-823. 
Verified  account,  when  and  to  whom  furnished,  823. 
Contents  of  account,   823. 


INDEX  1113 

[References  are  to  pages.] 

MECHANICS'  LIENS— Cont'd. 

Remedies   of   sub-contractor — Confd. 

Personal  liability  of  the  owner — Cont'd. 

Extent   of   owner's   liability   when    statute   followed,   823. 
Preference  of  sub-contractor  over  other  lienholders,  823- 

824. 
When  owner  allowed   to   deduct  amounts  for  which   he 

has  become  responsible,  824. 

Settling  disputed  accounts  between  general  and  sub-con- 
tractors, 824. 
Benefit  of  general  contractor's  lien,  824. 

Written  notice  to  owner,  time  for  giving,  contents,  824. 
Who  is  a  "sub-contractor,"  824. 

Protection   of   sub-contractor   against    assignments   and    garnish- 
ments, 825-826. 

His  preference  over  assignees  of  general   contractor,  825. 
Where  he  gives  written  consent  to  assignment,  825. 
Owner  pays  assignees  at  his  peril,  825-826. 
His    preference     over    garnishments     against    general      con- 
tractor, 825. 
Mechanics'  lien  record,  826. 

Duty  of  clerk  to  keep,  826. 

Recording  and  indexing  claims  of  liens  in,  826. 

Difference    between    recordation    of    mechanics'    and    supply 

liens,  826. 
Filing  of  claim  of  lien  as  notice  though  claim  not  recorded, 

818,  826. 
Conflicting  liens,  826-827. 

Difficulty  of  questions  involved,  826. 

Mechanics'  lien  limited  to  interest  of  owner  in  land,  826. 
Lien  on  land  created  before  works  begun  or  materials  fur- 
nished,  826-827. 
How   far   preferred   in    distribution    of  proceeds   of   sale, 

827. 
Lien  on  land  created  after  work  begun  or  materials  furnished, 

827. 

Priority   of   mechanics'   lien   to,   827. 
Proceedings  to   enforce   mechanics'  liens,   828-831. 
Equity  jurisdiction,  828. 
Priorities  among  lienholders,  828. 
Coming  into   suit  by  petition,  828. 
Statute  of  limitations,  828-829. 

Within  what  time  suit  must  be  instituted,  828. 
When  petition  regarded  as  institution  of  suit,  828. 
As  limitation  of  right  and  not  of  remedy,  828. 
What  bill  must   show,   demurrer,  828. 

When  allegations  in  bill  deemed  sufficient,  828. 


1114  INDEX 

[References  are  to  pages.] 

MECHANICS'  LIENS— Cont'd. 

Proceedings    to    enforce   mechanics'    liens — Cont'd. 
Statute  of  limitations — Cont'd. 

Effect  on  as  to  others  of  suit  by  sub-contractor,  828. 

Operation  as  suspension  of  further  suits,  828. 
When    subsequent   lienors   may   be   impleaded,   828-829. 
Right  of  one  creditor  to  plead  against  another,  829. 
When  court  of  equity  will  grant  complete  relief,  829. 
Proceedings  at  law,  essential  allegations  of  pleadings,  829. 
Sale  of  property,  terms  of  sale,  830. 
Rental  of  property,  830. 

In   what   cases  personal   decrees  may   be   entered,   830-831. 
How  a  mechanics'  lien  may  be  waived  or  lost,  831-833. 
By  not  bringing  suit  within   six   months,   831-833. 

Where  debt  payable  in  instalments,  832. 
By  agreement,  831. 
By  estoppel,  831. 

By  the  contractor's  abandoning  the  contract,  831. 
By  destruction  of  the  building,  831. 
By  taking  security,  831-833. 

As  dependent  on  intention  of  parties,  831,  833. 
Personal  judgment  against  party  liable,  831. 
Taking  debtor's   negotiable   note,   831-832. 

Date  of  maturity  as  affecting  question,  831-832. 

MEMORANDUM  FOR  ACTION 

See  Process. 

MONEY  LENT 

Proceedings  for  recovery,  see  Assumpsit,  Action  of. 

MONEY  PAID 

Proceedings  for  recovery,   see  Assumpsit,  Action  of. 

MONEY  RECEIVED 

Proceedings  for  recovery,  see  Assumpsit,  Action  of. 

MORTGAGES 

See  Ejectment,  Executions,  Homesteads,  Limitation  of  Actions. 

MOTIONS 

See  Motions  after  Verdict,  Proceedings  by  Way  of  Motion. 

MOTIONS  AFTER  VERDICT 

Classification  of  principal  motions,  558. 


INDEX  1115 

[References  are  to  pages.] 
MOTIONS   AFTER   VERDICT— Cont'd. 
Motion  for  a  new  trial,  558-569. 
Statutory  provisions,  558. 
Time  for  making,  558-559. 
Discretion  of  trial  court,  review,  559. 
Error  or  misconduct  of  the  judge,  559-560. 
As  to  instructions  or  evidence,  559. 
Time  for  objection,  review,  559. 
Right  of  judge  to  set  aside  verdict  sua  sponte,  559. 
Necessity   for   motion   for   new   trial   before   appeal,   559- 

560. 

Correct  verdict  on  erroneous  instructions,  560. 
Verdict  in  accord  with  instructions  not  objected  to,  560. 
Misconduct  of  judge,  what  is,  effect,  560. 
Error  or  misconduct  of  the  jury,  560-563. 
Damages  too  large  or  too  small,  560. 
Chance  verdicts,   560. 
What   constitutes   misconduct,   560-561. 

Time  for  objection,  waiver,  560. 
Impeachment   of  verdict   by  jurors,   561-563. 
Tendency  of  the  courts  as  to  allowing,  561. 
Necessity  for  allowing  in  some  cases,  561. 
Matters    resting    in    personal    consciousness    of    one 

juror,   motives,  561-563. 

Where  misconduct  evidenced  by  overt  acts,  561-563. 
Matters  outside  the  jury  room,  562-563. 
Misconduct  of  counsel,  what  constitutes,  effect,  563. 
Misconduct  of  parties,  563-564. 
What  constitutes,  563. 
After  verdict,  effect,  563-564. 
Misconduct   of  third  persons,   564. 

Demonstrations   in   court  room,   564. 
After-discovered  evidence,  564-565. 
What  is,  564. 

Evidence  discovered  pending  trial  as,  564. 
Location  of  witness  discovered  subsequent  to  trial,  564- 

565. 
Essential  requirements  as  to,  565. 

Exceptional  cases.  565. 
What  evidence  is  cumulative,  565. 
Verdict  contrary  to  the  evidence,  565-568. 

New  trial  refused,  right  of  appeal,  565-566. 

In  England  and  United  States  courts,  565-566. 
In  Virginia,  rule  of  decision  in  appellate  court,  566- 
567. 


1116  INDEX 

[References  are  to  pages.] 

MOTIONS   AFTER   VERDICT— Cont'd. 
Motion  for  a  new  trial — Cont'd. 

Verdict   contrary   to   the    evidence — Cont'd. 

New  trial  refused,  right  of  appeal — Cont'd. 

In  West  Virginia,  rule  of  decision  in  appellate  court, 

568. 

Rule  of  decision,  conflicting  evidence,  567. 
Issues  out  of  chancery,  567-568. 
Accident  and  surprise,  568. 

Essential  facts   necessary  to  warrant  new  trial   for,  568. 
How  courts  look  upon  motions  for  such  cause,  568. 
Damages  excessive  or  too  small,  569. 
Number    of   new   trials — Conditions,    569-571. 

Statutory  rule  in  Virginia  and  West  Virginia,  569-570. 
Where  verdict  is  void  on  its  face,  569. 
Costs,  569-571. 

Who  to  pay,  569-571. 
When  to  be  paid,  569-570. 
Waiver  of  right  as  to,  570. 
In  what  court,  570. 
Arrest  of  judgment,  571-573. 

When  motion  lies,  how,  when  and  where  made,  571. 

As  concurrent  remedy  with  writ  of  error,  571. 

Statute  of  jeofails,  errors  cured  by,  571. 

Uniting  tort  and  contract,  571. 

When  error  not  deemed  apparent  on  record,  572. 

Motion  by  party  not  injured,  572. 

Correcting  record  on   such   motion,  572-573. 

Verdict  uncertain,  venire  facias  de  novo,  572. 

Material  error  in  pleadings,  repleader,  572. 

Where    plaintiff    cannot    succeed,    judgment    non    obstante 

veredicto,  572-573. 

Judgment  non   obstante  veredicto,  573-574. 
When  proper,  573. 
Reasons  for  entering,  573. 

When  plaintiff  should  take,  though  verdict  in  his  favor,  573. 
By  whom  motion  for  made,  573-574. 
Where  plea  by  way  of  traverse,  574. 
Error  of  record,  necessity  for,  574. 
Repleader,  574-575. 

When   motion   for  proper,  574-575. 

Procedure   when   awarded,   575. 

Where   decision   must   have   been   the    same    even   on   proper 

plea,  575. 
How  differs  from  judgment  non  obstante  veredicto,  575. 


INDEX  1117 

[References  are  to  pages.] 

MOTIONS   AFTER   VERDICT— Cont'd. 
Venire  facias  de  novo,  575-576. 

When  proper,  discretion  of  court,  575-576. 

Effect  of  award  of,  575. 

Differences  between  and  motion  for  a  new  trial,  575-576. 

In  what  cases  a  venire  de  novo  can  occur,  576. 

MUNICIPAL  CORPORATIONS 

Appeals  involving  validity  of  by-laws  or  ordinances,  where  cog- 
nizable, s.ee  Courts. 

Recovery  of  possession  of  streets,  see  Ejectment. 
See  also  Attachments,  Executions,  Limitation   of  Actions,  Process 

NAMES 

Misnomer  in  pleading,  see  Pleading  (Rules  of  Pleading},  925-927 
Jurisdiction  of  courts  to  change,  see  Courts. 
See  also  Pleading,  Process. 

NEGLIGENCE 

Not  necessary  to  negative  contributory  in  pleading,  951. 
See  Demurrer,  Pleading. 

NEWSPAPERS 

See  Libel  and  Slander. 

NEW  TRIAL 

Second  trial,  602-603. 

Verdict  for  plaintiff  set  aside  on  first  trial,  602-603. 

Bill  of  exception,  necessity  for  and  essentials  of,  602 
Courses  open  to  plaintiff  on  second  trial,  602-603. 
Entering  into  trial  on   merits,   602-603. 
Allowing  verdict  for  defendant,  procedure,  603. 
Appeal  and  error,  which  trial  first  reviewed,  603. 
See  Appeal  and  Error,  Bills  of  Exception,  Costs,  Motions  after  Ver- 
dict. 

NON-SUIT 

See  Dismissal  and  Xonsuit. 

NOTARIES 

See  Attachments. 

NUISANCE 

What  is,  2. 
Abatement  of,  2. 

Defined,  2. 

Method  of,  2. 

As  method  of  redress,  see  Remedies. 
See  also  Limitation  of  Actions. 


1118  INDEX 

[References  are   to  pages.] 
OATH 

See  Arbitration  and  Award,  Attachments,  Interpleader,  Jury,  Plead- 
ing. 

OFFICE  JUDGMENT 

See  Judgments. 

OFFICERS. 

Distress  for  taxes  and  officer's  fee  bills,  see  Distress. 
See  also  Attachments. 

OPENING  STATEMENT  OF  COUNSEL 
See  Trial. 

PARENT  AND   CHILD 

Subjecting  wages  of  minor  for  debts  of  his  parents,  809. 
See  Justices  of  the  Peace,  Exemptions. 

PARTIES 

Proper  parties  to  action  ex  contractu  generally,  49-51. 
General  principle,  49. 
In  contracts  not  under  seal,  49-50. 
In   contracts   under   seal,   deed  inter  paries,  50-51. 

At  common-law,  right  of  beneficiary  to   sue,  50-51. 

In  Virginia,   right  of  beneficiary  to   sue,   50-51. 
In  contracts  under  seal,,  deed  poll,  50-51. 

At  common  law,  right  of  beneficiary  to  sue,  50-51. 

In  Virginia,  right  of  beneficiary  to  sue,  50-51. 
Parties  must  always  be  living  parties,  51. 
Survival  of  actions,  51. 
Revival  of  actions,  51. 
Death  of  sole  party,  51. 
Joint  and  several  contractors,  51-54. 
Defined,  51. 

General  rule  as  to  parties,  51-52. 
No  action  against  intermediate  number,   52. 

Exception — negotiable  instruments,  52. 

Exception — proceedings  by  motion,  52. 

Judgment  as  bar,  54. 
Joint  contractors,  51-54. 
Defined,  51. 
Survivorship,   52. 

At  common-law,  52. 

In  Virginia,  52. 
Sued  jointly  as  general  rule,  52,  54. 

Exception — proceedings  by  motion,  52. 

Exception — negotiable  instruments,  52-53. 


INDEX  1119 

[References  are  to  pages.] 

PARTIES— Cont'd. 

Joint  contractors — Cont'd. 

Judgment  against  one  as  bar  as  to  others,  52-53. 

At    common-law,    53. 

In  Virginia,  53. 

Discontinuance    as    to    one   after    service    of   process,    ef- 
fect,  53-54. 

Personal  defense  of  one  as  reason  for  non-joinder,  54. 
Infant  joint  contractor,  failure  to  join,  effect,  54. 
Plea  in  abatement  for  non-joinder,  essentials  of,  54. 
Proper  parties  to  actions  ex  delicto  generally,   55-56. 
General  rule  as  to  plaintiff,  legal  right,  55. 
Possession   of  one   with   equitable   right   invaded   by  wrong- 
doer, 55. 
General  rule  as  to  defendants,  55. 

Infants,  55. 

Corporations,  55. 

Defendant,  invoking  title  as  defense,  requisites,  55. 
Joint  tortfeasors,  55-56. 

Joint  and  several  liability  of,  55-56. 

Effect,  as   bar,   of  unsatisfied  judgment  against  one,   56. 
In   England  and  Virginia,  56. 
General  rule,  56. 
Assignees  of  contracts,  56-58. 

Right  of  assignee  to  sue  in  .own  name,  56-58. 

At  common-law,  56. 

In  Virginia,   56. 

Holder   of  negotiable  paper,   right  to   sue,   56-57. 
Allowance  of  discounts,  57. 
Open  account,  assignability  of,  57. 

Beneficial  owner  of,  right  to  sue  in  own  name,  57. 
Option  of  assignee  as  to  form  of  action,  57. 
Pleading,  57. 

Setting  forth  assignment,  57. 

Endorsements  as  to   real  party  in   interest,  57. 

Amendment  of  declaration,  57. 
Costs,  against  beneficial  or  nominal  plaintiff,  57. 
Form  of  assignment,  57. 
Consideration  for  assignment,  57. 
Assignor,  interference  with  action  by,  57-58. 
Partial  assignments,  validity  and  effect,  58. 
Virginia  statute  as  creating  new  cause  of  action,  58. 
Rights  accruing  before  assignment,  right  of  assignee  to  en- 
force, 58. 
Voluntary  conveyance,  right  of  assignee  of  debt  to  avoid,  58. 


1120  INDEX 

[References  are  to  pages.] 
PARTIES— Con  t'd. 

Assignees  of  rights  of  action  for  torts,  58-59. 
What  torts  are  assignable,  58-59. 
Purely  personal  torts,  58-59. 
Injuries  to  property,  or  breach  of  contract,  59. 
Survival  of  tort  actions,  59. 

Personal  tort,  method  of  determining  what  is,  58-59. 
Form  of  action  as  determining,  58-59. 
Special  damages  as  determining,  59. 
Joint  tortfeasors,  59-61. 

Joint  and  several  liability  of,  59. 

Negligent  injuries,  what  constitutes  joint  liability  for,  59-60. 
Conflict  in  authorities,  59. 
Indivisible  injury   by  independent  acts,  59. 
Indivisible  injury  but  no   common   duty,   etc.,  59. 
Successive  negligent  acts  of  carriers,  59. 
Nuisances,  rule  as  to,  59-60. 
Master  and  servant,  60-61. 

Joint  liability  for  servant's   negligence,   60. 
Judgment  in  favor  of  one  as  bar  for  others,  60. 
Where  defense  was  personal,  60. 
Where  defense  equally  applicable  to  all,  60. 
Verdict  when  all  sued,  joint,  60. 
Damages,  power  of  jury  to  apportion,  60. 
Dismissal  of  action  against  one,  after  verdict,  60-61. 
Actions  by  and  against  court  receivers,  61-63. 
Actions  by  them,  61-63. 

Right  to  sue  without  authority  from  court,  61. 
Right  to  sue  in  courts  of  foreign  jurisdiction,  63. 

Ancillary    receiver,    appointment,    when    proper,    63. 
Actions  against  them,  61-62. 

Necessity  for  leave  of  court,  general  rule,  61. 
Rule  in  Virginia,  61-62. 
Rule  in  United  States  courts,  61-62. 
Distinction  between   Va.   and   U.   S.  rule,  61-62. 
Basis  of  actions  against,  62. 
Receiver's  acts,  62. 

Principal's  acts  before  receiver's  appointment,  62. 
Acts  of  predecessor  in  office  of  receiver,  62. 
Identification  of  receiver  with  office,  62. 
Judgment  against,  how  payable,  62-63. 
Judgment  against,  effect  of,  62-63. 

Pleadings,  right  to  sue  or  be  sued  must  appear  in,  61. 
Contempt,   suing  receiver  without  leave  as,  61. 
Execution  on  judgment  against,  61. 


INDEX  1121 

[References  are   to  pages.] 

PARTIES— Cont'd. 

Actions  by  and  against  court  receivers — Cont'd. 
How  process  or  notice  served  on,  61-62. 
Justice  of  the  peace,  length  of  notice  before  trial  by,  62. 
Partnership,  63-65. 

How  partners  sue  and  are  sued,  63-65. 
In  general,  63. 

When  firm  has  been  dissolved,  63. 
Dormant  and  special  parties  as  plaintiffs,  63-64. 
Dormant  and  special  parties  as  defendants,  63-64. 
Survival  of  action  for  and  against,  64. 
Form  of  writ  and  declaration  where  one  dead,  64. 
Change   in   firm   after  action  accrued,   effect   of,   64. 
Suing  in  firm  name,  effect  of,  64. 
Objection  after  judgment,  64. 
Appearance  to  merits,  validity  of  judgment,  64 
Judgment,  collateral  attack,  64. 
Rule  in  West  Virginia,  before  justice,  65. 
Being  sued  in  firm  name,  effect  of,  64. 

Appearance    and    no    objection,    64. 
Omission  of  one  as  plaintiff,  effect  of,  64. 

How  objection  taken,  64-65. 
Omission  of  one  as   defendant,  effect  of,  65. 
How   objection   taken,   65. 
Reason  of  the  rule,  65. 

Suit  by  one  against  another,  or  others,  65. 
Dissolution,  power  after  of  one  to  employ  attorney  for 

firm,  65. 

Appearance  by  such  attorney',  effect  of,  65. 
Executors  and  administrators,  65-66. 
How  they  sue  and  are  sued,  65-66. 
On  contracts  of  the  decedent,  65. 
On   contracts  with   representative   himself,  65. 

Co-executors   or  administrators,  joinder,   65-66. 
Survivorship,  66. 

Foreign,  right  of  to   sue  in  another  jurisdiction,  66. 
Ancillary  letters  in  such  cases,  66. 
Objection,  how  and  when  made,  66. 
Corporations,  66. 

How  4:hey  sue  and  are  sued,  66. 
Infants.  66. 

How  they  sue,  66. 
How  they  are  sued,  66. 

Guardian  ad  litem,  appointment  and  character,  66. 
Service  of  process  on,  necessity  for,  66. 

—71 


1122  INDEX 

[References  are  to  pages.] 

PARTIES— Cont'd. 

Insane  Persons,  66-67." 
Actions  by,  66. 

Before    adjudication,    66. 
After  adjudication,  66. 
Actions  against,  66-67. 

When  there   is  no   committee,   66-67. 
After  committee's  appointment,  67. 
When  insane  person  not  necessary  party,  67. 
Guardian   ad   litem,   appointed  when,   67. 

Where  there  is  a  committee,  67. 

Past  expenses,  right  of  action  of  State  hospital  against  es- 
tate for,  67. 

Action    against    State    or    State    hospital    for    negligent    in- 
juries to,  67. 
Married  women,   67-68. 

How  they  sue  and  are  sued  in  Virginia,  67-68. 
Next  friend,  surplusage,  67. 
Responsibility  of  husband  for,  67. 
Judgment  against,   effect   of,   67-68. 
How  they  defend  action,  68. 
Right  of  husband  to  wife's   services,  68. 
Injury  to,  as  giving  rise  to  two  causes  of  action,  68. 
Unincorporated  associations,  68. 

How  they  sue  and  are  sued,  68. 
Death  by  wrongful  act,  68-70. 

Right  of  representative  of  non-resident  alien  to  sue  for,  68. 
Undisclosed  principal,  70-71. 

Suits  by  and  against  in  own  name,  70-71. 
Third  party,  rights  of  when  sued  by,  71. 
Suits  by  and  against  the  agent,  71. 
Damages,  measure  of,  71. 
Convicts,  71-72. 

Suits  by  and  against  at  common  law,  71-72. 

Residence  of,  and  service  of  process  on,  71-72. 
Suits  by  and  against  in  Virginia,  72. 

Residence   of,   and   service   of  process   on,   72. 
Official  and  statutory  bonds,  72-73. 

Who  may  maintain  action  on,  72-73. 
Change  of  parties,  73-74. 
Causes  of  change,  73. 

Between  verdict  and  judgment,  effect  of,  73. 
Several  plaintiffs  or  defendants,  survivorship,  73. 
When  action  must  be  revived,  73. 


INDEX  1123 

[References  are  to  pages.] 

PARTIES— Cont'd. 

Change  of  parties — Cont'd. 

How  action  revived,  73-74. 
Scire  facias,  73. 
Motion,  73. 

Powers  of  defendant  ceasing,  effect  of,  73-74. 
Suggestion  of  on  record,  74. 
Effect  of  discontinuance,  74. 
Misjoinder  and  non-joinder   of  parties,  74-76. 
Defined,  74. 

Mode  of  taking  objection  at  common  law,  74-76. 
Actions  ex-contractu,  74-75. 

Too  many  or  too  few  plaintiffs,  74-75. 
Too  many  or  too  few  defendants,  75. 
Actions  ex  delicto,  75-76. 

Too  many  or  too  few  plaintiffs,  75. 
Too   many  or  too   few   defendants,   75-76. 
Non-joinder  of  defendants  in  detinue,  effect  of,  76. 
Effect  of  non-joinder  in  Virginia,  76. 
Effect  of  misjoinder  in  Virginia,  75,  76. 

See  Abatement  and  Revival,  Continuance,  Covenant,  Action  of, 
Death,  Detinue,  Ejectment,  Interpleader,  Libel  and  Slander,  Limi- 
tation of  Actions,  Malicious  Prosecution,  Master  and  Servant,  Me- 
chanics' Liens,  Prohibition,  Replevin. 

PARTNERSHIP 

Implied  authority  to  employ  attorney  after  dissolution,  293. 

Affidavit  denying,  when  filed  with  nil  debet,  see  Debt,  Action  of. 

Validity  of  submission  to  arbitration  by  one  partner  of  firm  mat- 
ters, see  Arbitration  and  Award. 

See  also  Attachments,  Executions,  Homesteads,  Libel  and  Slander. 
Limitation  of  Actions,  Parties,  Set-Off  and  Counterclaim. 

PAYMENT 

What  constitutes  payment,  425-430. 
Definition  of  payment,  425. 
By  or  to  whom  made  in  general,  425. 
Payment  by  volunteer,   effect,  425-427. 
Part  payment,  or  compromise,  effect  of,  427-428. 
Medium  of  payment,  428-429. 

Counterfeit  money,  checks,  etc.,  428-429. 

Note  of  debtor  or  third  person  as  payment,  428-429. 

Set-off  as  payment,  429. 
Payment  by  mail,  429. 
Voluntary  payments,   effect,  presumptions,   429-430. 


1124  INDEX 

[References  are  to  pages.] 
PAYMENT— Cont'd. 

Application   of  payments,   430-431. 

Who  makes,  parties  or  court,  430-431. 

Secured   and   unsecured   claims,   430-431. 

Partial   payments,    computation    of    interest,    431. 

Running  account,  431. 
Plea  of  payment,  431-434. 

When  special  plea  necessary,  432-433. 

When   general   issue   sufficient,   432-433. 

Account  of  payments,  432-433. 

Form  of  the  plea,  433. 

Burden  of  proof,  and  right  to  open  and  conclude  case,  433. 

Plea  of  part  payment,  discontinuance,  433. 

Code  States,  how  defense  made,  434. 
Payment  and  set-off  distinguished,  434. 
Showing  under  nil  debet,  see  Debt,  Action  of. 

See  also  Executions,  Limitation  of  Actions,  Mechanics'  Liens,  Trover 
and  Conversion. 

PERJURY 

See  Malicious  Prosecution. 

PLEADING 

Defined,  336. 

Pleadings  speak  as  of  date  of  writ,  98. 

Laying  venue  in,  or  averring  jurisdiction,  287. 

Alleging  matters  not  traversable,  287. 

Difference   between   formal  and  substantial  averments,   345-346. 

Declaration,   essentials  of,  test  of  sufficiency,  346. 

General  statements,  and  general  averments  of  negligence  in, 
346. 

Negativing  contributory  negligence  in,  347. 

Duplicity  in,  effect,  how  availed  of,  335. 
How  exemption  from  service  of  process  plead,  295. 
Repleader,  when  awarded,  357. 
Bill  of  particulars,  599-602. 

The  Virginia  statute,  599. 

Object  of  the  statute,  599-600. 

Multiplicity  of  particulars,   599-600. 

As  limiting  scope  and  operation  of  general  issue,  600. 

When   pleadings    sufficiently    definite,    600-601. 

Requiring   more    specific    statement,    600. 

Right  of  defendant  who   fails  to  file  to  introduce   evidence, 

600,  602. 
Limitation  of  scope  of  evidence  in  such  case,  600. 


INDEX  1125 

[References  are  to  pages.] 

PLEADING—  Cont'd. 

Bill  of  particulars — Cont'd. 

As  part  of  declaration  or  plea,  demurrer,  600. 
In  what   cases  required,  600-601. 

Discretion   of  trial   court,   review,   600-601. 
Details  of  evidence,  601. 
Elements  of  damages,  601. 
Ejectment  cases,  601. 

Requirement  of  defendant  to  file,  time  for  objections, 

601. 

Requiring  plaintiff  to  file,  601. 
Formality  of  the  bill,  601-602. 
Informal  nature  of,  601. 
Requiring  sufficient  statement,  exclusion  of  evidence,  601- 

602. 

When  sufficient  in  form,  602. 
Insufficient  bill,  602. 

Remedy  of  other  party,  602. 
Time  for  objection,  602. 
Bill   of  exception,  when   necessary,  602. 
In   Federal   courts,  the   Conformity  Act,  267. 
What  pleas  must  be  verified  by  affidavit,  269. 
Dilatory  pleas  and  time  of  filing,  268-274. 
Classification   of  pleas  in   general,  268. 
Kinds  of  dilatory  pleas,  268. 
Kinds  of  peremptory  pleas,  268. 
Failure  to  plead  pleas  in  due  order,  effect,  269. 
Must  be  sworn  to,  269. 

Strict   construction,   formal   errors,   special   demurrer,  269. 
To  the  jurisdiction,  use  of,  how  pleaded,  258,  269,  271. 
When  pleaded  in  proper  person  and  when  by  attorneyi  269- 

270. 

Corporations,   269-270. 
In  suspension,  nature  and  use  of,  270. 
For    variance    between    writ    and    declaration,    amendments, 

257,   270,   349. 
For  misnomer,  257,  270. 
For  non-joinder  of  co-defendant,  necessary  allegations,  258, 

270-271. 

Giving  plaintiff  a  better  writ,  271. 
General  rule,  271. 

When  plea  is  to  the  jurisdiction,  271. 
Waiver  of  defects,  271-272. 

Appearance   to   the   merits,  what   is   general   appearance, 

271-272. 
Special  appearance,  271-272. 


1126  INDEX 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Dilatory  pleas  and  time  of  filing — Cont'd. 

Objections  other  than  by  dilatory  pleas,  272-273. 

Where    process    void,    by    motion    or    by  court  ex  officio, 

272,  327. 
Where  process  not  served,  special  appearance  to  dismiss 

action,  272-273,  327. 
Time  of  filing,  258,  273. 

After  rule  to  plead,  procedure,  273-274. 
Kinds  of  peremptory  pleas,  268. 
Pleas  in  bar,  328-336. 

What  are,  other  names  for,  328. 
Distinguished  from  other  pleas,  328. 
Different  kinds  of,  268,  328-332. 
Traverse  or  denial,  328-329. 

(1)  The  common  traverse,  nature  and  rarity  of,  328. 

(2)  The  special  traverse,  328-329. 
Other  names  for,  328. 
Obsolete,   328-329. 

(3)  The   general  traverse  or  the   general   issue,   328- 

329. 

Occurs  only  in  plea,  329. 
Nature  of,  329. 

Why  called  "general  issue,"  329. 
Confession   and  avoidance,  328. 
Special  pleas,  329-332. 
What  are,   329. 

What  is  meant  by  pleading  specially,  329. 
Of  matters  amounting  to  the  general  issue,  rule,  329. 

Reason  of  rule,  331. 

Of  matters  provable  under  the  general  issue,  rule,  329. 
What   special  pleas  amount  to   general   issue,   tests,   329- 

330. 
Distinction    between    amounting   to     and     being    provable 

under  general  issue,  330. 
General  rules  as  to  what  may  be  specially  pleaded,  329-330, 

330-331. 

Amounting  to  general  issue,  allowing,  effect,  330-331. 
As    narrowing   defense   permissible,    331. 
Discretion  of  court  in  allowing,  review,  331. 
How  regarded  by  courts,  331. 
When   required   to   be    sworn   to,  269,   331-332. 
Number  of  pleas  allowed,  332-334. 
At  common  law,  332. 
In  England  by  statute,  332. 


INDEX  1127 

[References  are  to  pages.] 

PLEADING-Con/U 

Pleas  in  bar — Cont'd. 

Number  of  pleas   allowed — Cont'd. 
In  Virginia,  332. 
In    West    Virginia,    333-334. 
Differences  between   English  and  Virginia  statutes,  332- 

333. 

Inconsistent  pleas,  333. 

Rule  as  to  replication  and  subsequent  pleadings,  333-334. 
How  objection  made,  334. 
No  objection,  waiver,  334. 

Differences    between    Virginia   and    West   Virginia    stat- 
utes, 333-334. 
Duplicity,  334-336. 

In  pleas,  defined,  334. 
Rule  as  to,  334. 

How  objection  for  made  at  common  law,  334. 
Present  day  mode  of  objecting  to,  335,  350. 
To  double  plea  in  abatement,  334-335. 
Rule  in  West  Virginia,  335. 
What  is  not,  335. 
Time   for  objection,  waiver,  336. 

For  discussion  of  traverses  in  general,  see  Rules  of  Plead- 
ing, infra,  and  pp.  847-870. 

For   discussion    of   nature   and    effect    of    general    issue,    see 
Rules    of    Pleading,   infra,   and   pp.    848-854.    899-900,    1016- 
1018. 
For   general   discussion   of  duplicity,   see    Rules   of   Pleading. 

infra,  and  pp.  892-908. 
Distinct  answers  to  same  claim,  see  Rules  of  Pleading,  infra, 

and  pp.  903-909. 
Pleas   amounting   to    general    issue,   see    Rules    of    Pleading. 

infra,  and  pp.  992-994. 
Pleas  puis  darrein  continuance,  578-580. 
At  common  law,  578-579. 

Right  to  plead  matters  puis  darrein  continuance,  579. 
Substitutional  nature  of  such  plea,  579. 
Discretion  of  court  as  to  receiving  plea,  579. 
Essentials  and   nature  of  plea,   579. 

What  pleas  are  technically  pleas  puis  darrein  continuance,  579. 
Pleas  to   the   further   maintenance   of  the    suit   distinguished. 

579-580. 

Right  to  plead  additional  pleas  not  substitutionally,  580. 
Whether  substitutional  or  not  at  present  time,  580. 
In  abatement,   time  for  pleading,  580. 
No  plea  by  tltis  name.  580. 


1128  INDEX 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Profert  and  oyer,  581-584. 

Making   profert,   in    what    cases    formerly    necessary,    581. 
No  necessity  for  profert  in  Virginia  and  West  Virginia,  581. 
Filing  instrument  with  declaration  as  substitute  for  profert, 

581-582. 
Manner   of   craving   oyer   of    such    instrument,    time    for, 

581-582. 

Failure  to  file,  notice  to  produce,  582,  584. 
Craving  oyer  as  making  instrument  part  of  record,  581-582. 
Methods  of  defense  when  oyer  craved,  582-583. 
Craving  oyer  and   demurring,  582. 
Craving  oyer  and  pleading  in  abatement,  582-583. 

Not  proper  in  case  of  misnomer  of  party,  583. 
Craving  oyer  and  pleading,  583. 
Debt  on   bond  with  collateral  condition,   583-584. 
Modes  of  suing  on,  583-584. 
Craving  oyer  and  pleading,   583. 
Craving  oyer  unnecessary  when,   583. 
Craving  oyer  and  demurring,  584. 

Sealed  instrument  misdescribed,  how  error  availed  of,  584. 
Instrument  not  sealed,  or  not  declared  on  as  sealed,  584. 
Failure  to  make  profert  as  ground  for  demurrer,  584. 
See  also  Rules  of  Pleading,  infra,  and  pp.   1003-1005. 
Variance,  584-587. 

Must  be  material,  584-585. 
What  variance  is  material,  585. 
Objection  for,  how  and  when  made,  585. 
Methods  of  avoiding  effect  of  variance,  585-587. 
Amendment  of  pleadings,  585-587. 
Discretion  of  court  as  to,  586. 
Liberality  in  permitting,  586. 
Costs   and   continuances,   586. 
Special  verdict  finding  facts,  586-587. 

Rarely  resorted  to,  586-587. 
When  evidence  should  be  excluded,  587. 
Waiver  of  objection,  587. 
Rules  of  Pleading. 

Principal  rules  of  pleading,  837-844. 

Object  of  pleading  to  obtain  issue,  837-840. 
Origin  of  coming  to  issue,  838-840. 
Reasons  for  coming  to  issue,  839-840. 
Materiality  of  issue,  840-841. 
Singleness  of  issue,   841-842. 

Where  several  distinct  claims,  841-842. 
Where  single   claim,  841-842. 


INDEX  1129 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Principal  rules  of  pleading — Cont'd. 
Certainty  of  issue,  842-844. 

What  meant  by  certainty,  842. 
Reasons  for  requiring,  842-844. 

Chief  objects  of  pleading,  scope  of  discussion,  844. 
Production   of  issue,  845-886. 
Introductory,  845-846. 

After  declaration  parties  must  demur  or  plead,   846-880. 
Effect  of  doing  neither,  846. 
Modes  of  answer  by  way  of  plea,  846. 
Demurrer,  846. 
Pleadings,  847-848. 

Nature  and  property  of  traverses,  847. 

Common  traverse,  847. 

Forms    of    common    traverse    and    of    replication 

thereto,  847-848. 
The  general  issue,  848-851. 
Why  so  called,  848. 
Differs  from  common  traverse,  848. 
Form  of  plea  of  non  est  factual,  848. 
Form  of  plea  of  nil  debet,  848-849. 
Form  of  plea  of  MM/  tiel  record,  849. 
Form  of  plea  of  non  detinet,  849. 
Form   of  plea  of  not  guilty  in  trespass  and  case, 

849. 

Form  of  plea  of  non-assumpsit,  849. 
Form  of  plea  of  non-cepit,  850. 
Scope  and  effect  of,  in  general,  850-851. 
Scope  of  general  issue  in  assumpsit,  851-852. 
Historical  development,  851-852. 
As   deviation   from  principle,  852. 
Scope  of  general  issue  in  trespass  on  the  case,  852- 

854. 

Historical  development,  853. 
Nature  of  defenses   allowed,  853-854. 
Special   pleas,   854. 
Traverse    de   injuria,   855-856. 
Nature  of,  855. 

Form  of  plea  and  replication,  855. 
When  proper,  856. 
Special   traverse,   856-858. 
Disuse  of.  856. 
Form  of  declaration  and  plea,  856-858. 


1130  INDEX 

[References  are  to  pages.] 

PLEADING— Confd. 

Rules  of  pleading — Cont'd. 

Production   of  issue — Cont'd. 

After   declaration   parties   must   demur   or  plead — Cont'd. 
Use  and  object  of  special  traverse,  858-861. 
Essentials  of  special  traverse,  861-865. 
Traverses  in  general,  865-866. 

As  denials  of  last  pleading  modo  et  forma,  865-866. 
Traverse  on  matter  of  law,  866-867. 
Demurrer  proper,   866-867. 
On  allegation  of  mixed  law  and  fact,  867. 
Matter   not  alleged   must   not   be   traversed,   867-869. 
Illustrations,   867-868. 
Exception,   868-869. 

Traversing  the  making  of  a  deed,  869-870. 
Estoppels  of  record  and  in  pais,  869-870. 
By  stranger,  plea  of  non  concessit,  870. 
Pleadings  in  confession  and  avoidance,  871-872. 
Classification,  871. 
Form  and  conclusion,  871. 
Quality  of,  admission  required,  871. 
Should  give  color,  definition  of  color,  871-872. 
Express  color,  872-873. 

Difference  between  and  implied,  872. 
Defined,  872. 
Disuse  of,  872-873. 
Nature  and  properties  of  pleadings  in   general,  873- 

875. 
Must   answer   whole    of   adverse   allegation,   873- 

874. 

Signing  judgment  as  by  nil  dicit,  873-874. 
Discontinuance,  873-874. 
Demurrer,  874. 

Failure  to  traverse  as  confession,  874-875. 
Operation  of  confession,  875. 
Protestation,  875. 
Exceptions  to  the  rule,  875-880. 
Dilatory  pleas,  876. 
Pleadings  in  estoppel,  876. 

Form  of  replication,  876. 
New  assignment,  876-879. 

Nature  and  object,  876-879. 
Form  of  replication  by  way  of,  878. 
At  what  stage  of  pleading  occurs,  878. 
In  what  actions  occurs,  878. 


INDEX  1131 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Production   of  issue — Cont'd. 

After   declaration   parties   must   demur   or  plead — Cont'd. 
Exceptions   to   the   rule — Cont'd. 
New    Assignment — Cont'd. 

Several  new  assignments,  879. 
Particularity  required  in,  879. 
Debt    on    bond    conditional,    assigning    breaches    in 

replication,  879-880. 

Upon  a  traverse  issue  must  be  tendered,  880-884. 
Reason  for  rule,  880. 

Formulae  of  tendering  issue  in  fact,  880-882. 
Conclusion  to  the  country,  880-881. 
To  be  tried  by  record,  881-882. 
Former  adjudication,   form  of  plea  and   replica- 
tion,  881-882. 

Exception  where  new  matter  is  introduced,  882-884. 
Conclusion  with  a  verification,  illustrations,  882- 

884. 

Issue,  when  well  tendered,  must  be  accepted,  884-886. 
The  similiter,  884. 
Forms  of  similiter,  884-885. 
Similiter  as  matter  of  form,  885. 
Acceptance  as  dependent  upon  mode  of  trial,  885. 
Issue  not  well  tendered,  demurrer,  885. 
Issue  in  law,  no  demurrer  upon  a  demurrer,  885-886. 
Materiality  of  issue,  887-891. 

All  pleadings  must  contain  matter  pertinent   and  mate- 
rial, 887-891. 
Traverse  must  not  be  taken  on  an  immaterial  point, 

887-889. 

Illustration,  887-888. 
On  premature  allegations,  888. 
On  matter  of  aggravation,  888. 
On  matter  of  inducement,  888. 
On  one  of  several  material  allegations,  888-889. 
Traverse    must    not    be    too   large    nor   too    narrow, 

889-891. 

When  traverse  too  large,  889-891. 
When  traverse  too  narrow,  890. 
Traverse  of  title  or  estate,  891. 
Singleness  of  issue.  892-909. 


1132  INDEX 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Singleness  of  issue — Cont'd. 

Pleadings  must  not  be  double,  892-908. 

Reason  for  and  meaning  of  rule,  892-893. 
Examples  of  in  declaration,  893. 
Example  of  in  plea  in  abatement,  893. 
Example  of  in  plea  in  bar,  893-894. 
How   duplicity  avoided,   894. 
Effect  of  duplicity,  mode  of  objection,  894. 
Several   demands,   894. 
Several  defendants,  894-895. 

Right  to  join   or  sever  in  defense,  894-895. 
Severance  productive  of  several  issues,  895. 
Illustrations,  895-900. 

Several  answers  in   one  pleading,  895. 

Double    though   ill-pleaded,   895-896. 

Immaterial     matters     can     not     make     pleading 

double,   896-897. 
Necessary    inducement    will    not    make    pleading 

double,  897-898. 
Matters   constituting   one    connected   proposition 

or  entire  point,  898-899. 
The   general  issue  as  a  permissible  double  plea, 

899-900. 
Several  counts,  900-902. 

Do  not  offend  against  rule,  900. 
Joinder  of  actions,  900-901. 

As  dependent  on  nature  of  claim,  900-901. 
As   dependent   on   status   of  defendants,   901. 
Unnecessary   severance,   consolidation,  costs, 

901. 

Form  of  declaration  in  two  counts,  902. 
Manner  of  making  defense,  902. 
Several  causes  of  action  in  one  count,   common 

counts  in  debt  and  assumpsit,  902. 
Several  pleas,  903-906. 

Distinct  answers  to  different  complaints,  903. 

Form  of  such  a  plea,  903. 
Distinct  answers  to  same  claim,  903-905. 
Ancient  rule,  903-904. 
Since  the  statute  of  Anne,  904. 
Necessity  for  leave  of  court,  904,  909. 
Form  of  such  a  plea,  904. 
Inconsistent  pleas,  905-906. 


INDEX  1133 

[References  are  to  pages.] 

PLEADING-CWU 

Rules  of  pleading — Cont'd. 

Singleness   of  issue — Cont'd. 

Pleadings  must  not  be  double — Cont'd. 
Several   replications,  906-908. 

Statute  of  Anne  does  not  apply  to,  906,  909. 
Illustration  of  hardship  of  not  allowing,  906-907. 
Effect  of  pleading  over,  907-908. 
Pleading  several   dilatory  pleas,  907,  909. 
Several    pleas,   pleading   each    as   a   new    or    further 

plea,  907,  909. 

Necessity  for  distinct  ground  of  answer  or  de- 
fense in  each,  907. 
Effect  of  pleading  over,  907-908. 
Not  allowable  both  to  plead  and  demur  to  same  matter, 

908-909. 

Necessity  for  election,  908. 
Rule  where  there  are  distinct  statements,  908. 
Effect  of  statute  of  Anne  on  rule,  908. 
The  rule  in  Virginia,  908-909. 
Certainty  of  issue,  910-965. 

Certainty   of  place,   911-918. 

Ancient  reason  for  law  of  venue,  911-915. 

Modern  reason  for  the  rule,  915-918. 

Local  and  transitory  actions,  916-918. 

How  far  necessary  to  lay  venue  truly,  915-918. 

Where  place  is  alleged  as  matter  of  description, 

917-918. 

Change  of  venue,  917. 
Certainty  of  time,  918-921. 

Necessity  for  allegation  of,  918. 
Matter  of  inducement  or  aggravation,  918. 
Alleging  one  time  and  proving  another,  918. 
The  use  of  videlicet,  918-919. 

Where  time  is  material,  918,  920. 
General  use,  919. 
Office  of  a  videlicet,  919. 
Time   impossible,    or   inconsistent    with    related    fact. 

919-920. 

When   time   is   material,   920-921. 
Real  and  mixed  actions,  921. 

Certainty  as   to   quality,   quantity  and   value,   921-923. 
As  to  goods  and  chattels,  921-922. 
As  to  real  property,  922. 
Foreign  money,  923. 


1134  INDEX 

[References  are  to  pages.] 

PLEADING— Confd. 

Rules  of  pleading — Cont'd. 

Certainty  of  issue — Cont'd. 

Certainty  as  to  quality,  quantity  and  value — Cont'd. 
General   statements   of  quantity  and  quality,   923. 
Actions    to    which    rule    requiring    certainty    inappli- 
cable,  923-924. 
Allegation  and  proof,  924-925. 

When  different  quantity  or  value  may  be  proved, 

924. 
Verdict  for  larger  quantity  or  value  than  alleged, 

924. 

When  quantity  or  value  material,  924-925. 
Quality  must  be  proved  as  laid,  925. 
Certainty   as    to    the    names   of   persons,    925-927. 
Parties  to  the  suit,  effect  of  misnomer,  925-926. 
Effect  of  misnomer  of  third  person,  926-927. 
Variance,  926-927. 
Amendments,  927. 
Practice  of  suing  by  initials,  926. 
The  pleadings  must  show  title,  927-941. 
General  necessity  for,  927-928. 
Derivation  of  title,  928-929. 

Estates  in   fee  simple,  928-929. 
Particular  estates,  929. 

Commencement  must  be  shown,  929. 
Exception,  929. 
Additional  rules  on  derivation  of  title,  930-932. 

Where   party   claims   by   inheritance    or   descent, 

930. 

Where    party    claims    by    conveyance    or    aliena- 
tion, 930. 
Conveyance    or    alienation    stated    according    to 

legal   effect,  930-931. 
When  deed  or  writing  must  be  alleged,  931-932. 

Plea  of  liberum  tenementum,  932-934. 

Nature  of  plea  and  when  proper,  932. 
Whether  necessary  to  put  the  title  in  issue,  932- 

933. 

Form  of  plea,  932-933,  934. 
Proof  necessary  to   sustain,   933. 
When  not  applicable,  933. 
As    giving   color,   933. 


INDEX  1135 

[References  are  to  pages.] 

PLEADING— Cont'd.  - 

Rules  of  pleading — Confd. 

Certainty    of    issue — Cont'd. 

The  pleadings  must   show  title — Cont'd. 
Title  of  possession,  934-937. 
Form  of  alleging,  934. 
When  title  of  possession  applicable,  935. 

As  affected  by  nature  of  property  or  estate, 

935. 

When  title  of  possession  sufficient,  935-937. 
As   against   a  wrongdoer,   935-937. 
In  replevin,  937. 
In  real  or  mixed  actions,  937. 
Alleging  title  in  adversary,  937-939. 

Degree  of  particularity  required,  937-939. 
When    title    of    possession    sufficient    allegation, 

937-939. 

Title  must  be   strictly  proved,  939-940. 
Estoppel  to  deny  title,  940-941. 
Vendor  and  purchaser,  940. 
Landlord  and  tenant,  940. 
Heir  and  tenant,   940. 
In  replevin,  940-941. 

The  pleadings  must  show  authority,  941-943. 
Degree  of  particularity  required,  941-943. 
Authority  must  be  strictly  proved  as  alleged,  943. 
Allegations  in  pleading  must  be  certain,  943-946. 
Illustrations,  943-946. 

Performance  of  a  condition  or  covenant,  943-944. 
Exceptions,  944. 

Particularity   required  in   replication,  944. 
Reply  to  plea  of  statute  of  frauds,  944-945. 
Plea  of  usury,  945. 
Certainty  of  proof,  946. 
Subordinate  rules,  946-965. 

Pleading  matters  of  evidence,  946-948. 
Illustrations,  946-947. 
Reason  of  rule  against,  947. 
Utility  of  rule  against,  947-948. 
Pleading  matter  of  which  court  takes  judicial  notice, 

948-950. 

Common  law,  948. 
Public  statutes,  948. 
Private  acts,  948. 


1136  INDEX 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Certainty    of    issue — Cont'd. 
Subordinate  rules — Cont'd. 

Pleading  matter  of  which  court  takes  judicial  notice 

— Cont'd. 

Stating  law  as  matter  of  convenience,  949. 
Foreign  law,  allegation  and  proof  of,  949-950. 

Construction  and  application,  949. 
Matters  of  fact,  950. 

Needless  allegation  of  law  not  traversable,  949. 
Pleading  matter  which   would   come   more   properly 

from  other  side,  950-952. 
Denials   by  anticipation,   950-951. 
When  rule  inapplicable,  951. 
Contributory   negligence,   951. 
Exceptions,  pleas  in  estoppel  and  of  alien  enemy, 

951-952. 

Alleging   circumstances   necessarily   implied?  952-953. 
Alleging  what  the  law  will  presume,  953. 
General   mode   of  pleading  where   prolixity   avoided, 

953-956. 

Illustrations,   953-956. 

Rule  not  applicable  when  fraud  charged,  955. 
Pleading  on   insurance  policies,  955-956. 
General    mode   of   pleading   sufficient   where   adverse 

allegation  will   produce   certainty,   956-960. 
Pleading   performance    in    debt    on    bond    condi- 
tioned, 956. 
Common    law    methods    of    declaring    on    penal 

bond  with  condition,  956. 
Method  in  Virginia,  956. 
Plea   of  non   damnificatus,   956-958. 
Plea  of  covenants  performed,  958-959,   960. 
Plea  of  covenants  not  broken,  959-960. 
No   greater  particularity   required   than   conveniently 

possible,   961-962. 
Illustrations,   961. 
Virginia  doctrine,  962. 
Less    particularity     required     when     facts     more     in 

knowledge  of  opposite  party,  962-963. 
Less  particularity  necessary  in  matter  of  inducement 

or  aggravation,  963. 

Pleading  act   valid   at   common   law  where   mode   of 
performance    regulated    by    statute,   964-965. 


INDEX  1137 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Certainty  of  issue — Cont'd. 

Subordinate  rules — Cont'd. 

Pleading  act   valid   at   common   law  where   mode  of 

performance  regulated  by  statute — Cont'd. 
Alleging     written     contract     under     statute     of 

frauds,  964-965. 
Different   rules  applicable   to   declaration  and 

plea,  964-965. 
Rules  to  prevent  obscurity  and   confusion,  966-987. 

Pleadings  must  not  be  insensible  nor  repugnant,  966-968. 
Illustrations,  966-968. 

Exception  where  second  allegation   superfluous,  968. 
Inconsistent  defenses  in  separate  pleas,  968. 
Pleadings  must  not  be  ambiguous  or  doubtful,  968-971. 
Certainty  to  a  common  intent,  969. 
Negative  pregnant,  969-971. 

Defined  and  illustrated,  970. 
Modern   construction   of  rule   against,   970-971. 
Pleadings  must  not  be  argumentative,  971-972. 

Two  affirmatives  do  not  make  a  good  issue,  971. 
Two  negatives  do  not  make  a  good  issue,  972. 
Pleadings  must  not  be  in  the  alternative,  972-973. 
Illustrations,  972-973. 

Avoiding  objection  by  several  counts  or  pleas,  972. 
Pleadings  must  not  be  by  way  of  recital,  973-974. 
Illustrations,  973-974. 

Different  rule  applied  to  declaration  and  other  plead- 
ings, 974. 
Things  are  to  be  pleaded  according  to  their  legal  effect, 

974-975. 

Illustrations,   974-975. 

Exception  in  cases  of  libel  and  slander,  975. 
Scope  of  rule,  975. 

Effect  of  Virginia  statute  as   curing  defects,  975. 
Pleadings   should   observe   known   and   ancient  forms   of 

expression,  976. 

Matters  of  form  in  Virginia,  976. 
Pleadings    should    have    proper    formal    commencements 

and  conclusions,  977-981. 
Forms   of  various   commencements   and    conclusions 

in  pleas  and  replications,  977-981. 

Matters    of    form    under    the    Virginia    statutes,    977, 
—72  978,   981. 


1138  INDEX 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Rules  to  prevent  obscurity  and  confusion — Cont'd. 

Pleadings    should    have    proper    formal    commencements 

and  conclusions — Cont'd. 

Pleadings  subsequent  to  the  replication,  981. 
Variations  in  forms,  981-983. 
Pleas  in  abatement,  981. 
Pleas    in    bar    pleaded    puis    darrein    continuance, 

981-982. 
Pleas    in    bar    of     matter     arising     after    action 

brought  but  before  plea  pleaded,  982. 
Pleadings  by  way  of  estoppel,  982. 
Pleadings    to    part    only    of    adverse    allegation, 

982-983. 
Exception   in   case   of  pleas  which  tender  issue, 

983. 

Improper   commencements   or   conclusions,   983-985. 
Effect  in  general,  983-984. 
Pleas  in  abatement,  984. 

Commencement  and  conclusion  as  determining 
class  and  character  of  plea,  replication  or  sub- 
sequent pleading,  984-985. 

A  pleading  bad  in  part  is  bad  altogether,  985-987. 
Illustrations,  985-986. 

Exception   in  case  of  the  declaration,   986-987. 
Rule  applies  only  to  material  allegations,  987. 
Rules  to  prevent  prolixity  and  delay,  988-996. 

There  must  be  no  departure  in  pleading,  988-992. 
Departure  defined,  988. 

At  what  stage  of  pleading  may  occur,  988. 
Instance  of  in  replication,  988-989. 
Most  frequent  in  rejoinder,  instances, -989-990. 
Departure  in  matter  of  law,  990. 
Instances  of  rejoinder  held  no  departures,  990-991. 
On  immaterial  point,  991. 
Reasons  for  rule,  991-992. 
Pleas  amounting  to  general  issue  should  be  so  pleaded, 

992-994. 

Illustrations,   992-993. 
Reasons   for   rule,  993-994. 
Discretion  of  court  in  allowing,  994. 
Mode   of  objecting  to,   994. 
What  pleas  amount  to  general  issue,  994. 


INDEX  1139 

[References  are  to  pages.] 
PLEADING-CWcf. 

Rules  of  pleading — Cont'd. 

Rules  to  prevent  prolixity  and  delay — Cont'd. 
Surplusage  is  to  be  avoided,  995-996. 
What  is,  995. 

Desirability  of  brevity  and  terseness,  995. 
Demurrer  for,  996. 
Striking  out,  costs,  996. 
Danger  of  as  necessitating  proof,  996. 
Miscellaneous  rules,  997-1006. 

Declaration  must  conform  to  original  writ,  997-998. 

Effect  of  variance,  amendments,  998. 

Declaration   should  have   proper   commencement,   should 
lay  damages  and  allege  production  of  suit,  998-999. 
Laying  damages,  998. 
Recovery   can   not   be   had   for   more   than   are   laid, 

998-999. 

Production  of  suit,  999. 

Pleas   must   be  pleaded  in   due   order,   999-1000. 
Proper  order  of  pleading,  999. 
Pleading  successively,  1000. 

Pleading  several  pleas  of  same  kind  or  degree,  1000. 
Varying  the  order  as  waiver,  1000. 
Issue  in  fact  on  dilatory  plea,  1000. 
Pleas  in  abatement  must  give   better  writ,   1000-1001. 
Dilatory  pleas  must  be  pleaded  at  preliminary  stage,  1001. 
What   pleadings    must    conclude   with    verification,    1001- 

1003. 

Common  and  special  verification,   1001-1002. 
Origin  of  rule  requiring  verification,  1002. 
Negative  pleadings,  1002-1003. 
When  profert  of  deed  must  be  made,  1003-1005. 

Of  what  instruments  profert  must  be  made,  1003. 
Under  what  circumstances  the  rule  applies,  1004. 
Exceptions  to  the   rule,   1004. 
Reason  for  the  rule,  1004-1005. 
Actual  value  of  the  rule,  1005. 
Profert  not  necessary  in  Virginia,  1005. 
All  pleadings  must  be  properly  entitled,   1005-1006. 
All  pleadings  ought  to  be  true,  1006. 
Rule  unenforceable,   1006. 
Permissible  legal  fictions,  1006. 


1140  INDEX 

[References  are  to  pages.] 

PLEADING— Cont'd. 

Rules  of  pleading — Cont'd. 

Merits  and  demerits  of  common  law  pleading,  1007-1019. 
Merits,  1007-1012. 

Production  of  issue,  1007-1011. 

Disadvantages     of    pleading    at     large    under     other 

systems,  1008-1011. 
Its  prevention  of  obscurity,  confusion,  prolixity  and 

delay,  1011. 
Demerits,  1012-1019. 

The  too  great  importance  given  to  mere  form,  1012- 

1014. 

Allowance   of  amendments   as   meeting  this   ob- 
jection,  1013-1014. 

Virginia  statutes  curing  this  objection,  1012-1014. 
Defects  of  the  required  singleness  of  issue,  1015-1016. 

Virginia  statute  curing  this  objection,  1015. 
Wide  effect  given  to  the  general  issue,  1016-1018. 
Virginia  statute  curing  this  objection,  1016. 
Its   excessive   subtlety   and   needless   precision,    1018- 

1019. 
Objection  more  theoretical  than  practical,   1018- 

1019. 

Virginia   statutes   curing  this  objection,   1018. 
For  a  general   summary  of  the   Rules   of  Pleading,   see   table   of 

contents. 
Affidavits  filed  with  pleas  in  actions  of  assumpsit,  see  Assumpsit, 

Action  of. 

Affidavits  filed  with  plea  of  nil  debet,  see  Debt,  Action  of. 
Amendments  at  trial  for  variance,  see  Proceedings  by   Way  of  Mo- 
tion. 

Calling  for  grounds  of  defense  with  nil  debet,  see  Debt,  Action  of. 
Motions,  see  Proceedings  by  Way  of  Motion. 
Necessity  that  right  of  court  receiver  to  sue  or  be  sued  should 

appear  in,  see  Parties. 

Pleas  in  abatement  to  notice  of  motion   for  judgment,  see  Pro- 
ceedings by  Way  of  Motion. 

Special  pleas  in  assumpsit,  see  Assumpsit,  Action  of. 
See  also  Action  on  the  Case,  Attachments,  Bankruptcy,  Continuance, 
Death,  Demurrer,  Demurrer  to  Evidence,  Detinue,  Dismissal  and 
Nonsuit,  Ejectment,  False  Imprisonment,  Interpleader,  Judgments, 
Libel  and  Slander,  Limitation  of  Actions,  Malicious  Prosecution, 
Mechanics'  Liens,  Motions  after  Verdict,  Payment,  Proceedings  by 


INDEX  1141 

[References  are  to  pages.] 
PLEADING— Cont'd. 

Way  of  Motion,  Process,  Replevin,  Rules  and  Rule  Days,  Set-Off 
and  Counterclaim,  Tender,  Trespass,  Trover  and  Conversion,  Un- 
lawful Entry  and  Detainer,  Venue,  Verdicts. 

PLEAS 

See  Pleading. 

PLEAS  IN  ABATEMENT 

See  Pleading. 

PLEAS  IN  BAR 

See  Pleading. 

PLEADING  PUIS  DARREIN  CONTINUANCE 

See  Pleading. 

PLEDGES 

See   Attachments,  Homesteads,  Limitation   of  Actions. 

POOR  DEBTORS'  EXEMPTION 

See  Exemptions. 

PRINCIPAL  AND  AGENT 

Validity   of   submission   to   arbitration   by   agent,    see  Arbitration 

and  Award. 
See  also  Attachments,  Limitation  of  Actions,  Malicious  Prosecution, 

Parties,  Process,  Set-Off  and  Counterclaim. 

PRINCIPAL  AND  SURETY 

See  Appeal  and  Error,  Attachments,  Executions,  Homesteads,  Judg- 
ments, Limitation  of  Actions,  Mandamus,  Set-Off  and  Counter- 
claim, Tender. 

PROCEEDINGS  BY  WAY  OF  MOTION 

Scope  of  treatment,  159. 

Proceedings  under  §  3211  of  the  Code,  159-168. 

The  statute,  159-160. 

General  observations  on,  159-160. 

Open  account,  compelling  sworn  defense,  analysis  of  statute, 
161. 

Service  of  notice,  161-162. 

Sworn   defence,   analysis   of   statutory   requirements,   162. 

Open  accounts,  advantage  of  statutory  provisions,   162. 

Motions  on  notes,  bonds,  etc.,  procedure,  162-163. 


1142  INDEX 

[References  are  to  pages.] 

PROCEEDINGS  BY  WAY  OF  MOTION— Cont'd. 
Proceedings  under  §  3211   of  the   Code — Cont'd. 

Affidavits  by  "agent,"  how  affiant  described,  162. 

Forms,  163. 

Venue  of  proceeding  by  motion,  163. 

In   Federal  courts,  163. 
Length  of  notice  and  return  day,  163-165. 
Length  of  notice  jurisdictional,  163-164. 
Illustration,   164. 

Returnable  to  any  day  of  term,  164-165. 
Given,  matured  and  tried  during  same  term,  164-165. 
Docketing,   164-165. 
Notice  should  be  in  writing,  165. 
The  return  and  proof  of  notice,  165-166. 

Time  limit,   statute  mandatory,  illustration,   165. 

Computation  of  time,  Sundays,  165. 

Proof   of   timely   return,    question    of   fact,    presumption, 

165-166. 
Continuances,  166-168. 

Discontinuances  under  Code   §  3211,  166-167. 
Skipping  term  of  court,  166. 
Failure  of  term  of  court,  166-167. 
Docketing,  effect  and  advisibility  of,  167-168. 
Notice  not  shown  on  record,  abandonment,  168. 
Advantages  of  procedure  by  motion,  168. 

Simplicity  and  dispatch,  168. 

Policy  of  the   statute — Construction   of  notice,    168-171. 
Reason   for  and  object  of  statute,   168. 
Convenience  and  utility  of  remedy,  169. 
Liberal  construction  given  notice,  169. 
Particularity  required  in  notice,  169-170. 
Must  state   case  and  be  certain,  169. 
Essential   averments,   169-170. 
Variance,    170. 

Allegata  and  probata  must  correspond,  170. 
Material,   effect   of,   170. 
Amendments   at   trial,   170. 

Proceeding  by  motion  is  action  at  law,  170-171. 
Notice   private   paper   until    filed,    170. 
When  action  considered,  instituted,  17 i. 
When  attachment  may  issue,   171. 
When  limitations  cease  to  run,  171. 
When   motion   lies   under   §   3211    of   Code,   171-172. 
General  rule,  171-172. 
On   contract  express  or  implied,   172. 


INDEX  1143 

[References  are  to  pages.] 

PROCEEDINGS  BY  WAY  OF  MOTION— Cont'd. 
Proceedings   under  §   3211   of  the   Code — Cont'd. 

When  motion  lies  under  §  3211  of  Code — Cont'd. 
Assignee  of  note,  172. 

On  insurance  policies,  form  of  notice,  172. 
How  as  to  decree  of  domestic  chancery  court,  1/2. 
When  motion  does  not  lie  under  §  3211  of  Code,  172-174. 
Recovery   of   statutory  penalty,   172-173. 
Damages  for  breach  of  contract,   173-174. 
The  manner  of  making  defenses  to  motions,  174-180. 
By  formal  pleas,   174-175. 
By  informal  statement  in  writing,  174-175. 
Replication,  174. 

Issue   necessary  for  jury  trial,   174-175. 
The  better  and  usual  practice,  174-176. 
Where  statutes  require  formal  pleas  or  affidavits,  174-176. 
Instances  of  informalities  held  not  reversible  error,  177- 

178. 

No  replication  to  plea,  177. 
No  plea  as  to  part  of  cause  of  action,  177-178. 
Replication   bad   for  duplicity,   178. 
Grounds  of  defense,  178. 
The   statute,   178. 

Statement  of  must  be  in  writing,  178. 
Plaintiff  should  always  call  for,  178. 
How  set-off  pleaded,  854. 
By  demurrer,   178-180. 

Cause  of  action  stated  but  notice  indefinite,  178-179. 

Bill  of  particulars,  178-179. 
No  cause   of  action  stated,  demurrer,  179. 

Illustration,   179. 

Question  raised  by  demurrer,  179-180. 
Pleas  in  abatement,  180. 
General  rule,  180. 
Motion   premature,   180. 
Time  of  filing,  180. 

Against  whom  judgment  may  be  given  on  motion,  180-181. 
The  statute,  joint  and  several  liability  under,  180. 
Illustration,  181. 

The   trial   of  the   motion,   181-182. 
In  general,  181. 

By  a  jury,  necessity  for  issue,  181. 
Procedure,  181-182. 

Writ  of  inquiry,   181-182. 
At  special  term,  182. 
At  criminal  or  chancery  term,  182. 


1144  INDEX 

[References  are  to  pages.] 
PROCEEDINGS  BY  WAY  OF  MOTION— Cont'd. 

Motions  to  recover  money  otherwise  than   under   §   3211   of  the 

Code,  182-184. 

For  debts  and  fines  due  State,  182. 
On  official  bonds,  182-183. 
On  forthcoming  bonds,  183. 
Between  attorney  and  client,  183. 
Between  principal  and  surety,  183. 
Other  instances,  182-183. 
Forms,  182-183. 

Rules  as  to  construction  of  notice,  service,  defenses,  etc.,  183: 
Length  of  notice  required,  183-184. 
Notice  should  be  in  writing,  184. 
When  motion  made,  docketing,  continuances,  184. 
No  memorandum  in,  288. 
What  is  the  process  in,  292. 
See  Attachments,  Limitation  of  Actions,  Parties,  Process. 

PROCESS 

How  process  is  obtained,  286-289,  292. 
At  common  law,  286-287. 
In  modern  times,  287,  292. 
The  memorandum,  its  function,  287. 
Forms  of  memoranda,  287-289. 

In  Debt,  laying  damages  in,  287-288. 

In  Assumpsit,  laying  damages  in,  288. 

In  Covenant,  laying  damages  in,  288. 

In  Motions  for  Judgment,  none,  288. 

In  Unlawful  Detainer,  288. 

In  Ejectment,  none,  288-289. 

In  Detinue,  289. 

In  Interpleader,  none,  289. 

In  Trespass  vi  et  armis,  289. 

In  Trespass  on  the  case,  289. 

In  Trover,  289. 

In  Libel  or  Slander,  289. 
Nature  of,  289. 
Whence  emanates,  289. 
Return  day,  defined,  289-290. 
Notice  to  defendant,  essentials  of,  290. 
Subpoena,  what  is,  290. 
When   issued,   290. 
Alias  and  pluries  summons,  when  issued,  290-291. 

Time  of  issuance  as  affecting  limitations,  290-221. 
In  what  name  runs,  attestation  of,  291. 
Altering  or  filling  blanks  after  issuance,  291-292. 


INDEX  1145 

[References  are  to  pages.] 
PROCESS— Cont'd. 

Appearance  as  waiver  of,  292-293. 
Confessing  judgment,  necessity  for  process,  292. 
What  is  the,  in  proceedings  by  motion,  292. 
In  ejectment,  292-293. 
Under  Code  practice,  293. 
Who  are  exempt  from  service,  293-295. 
Sovereign  States,  293. 
Ambassadors  and  public  ministers,  293. 
Consuls,  293. 

Members  of  Congress,  293. 
Other  instances,  293-294. 

Statutes  as  referring  to  civil  or  criminal  process,  293-294. 
Resident  party  and  witness,  294. 
Non-resident  party  or  witness,  294. 
Convicts,  rule  as  to,  294. 
Waiver  of  exemption,  294-295. 
How  exemption  claimed,  295. 
Who  may  serve  process,  295-296. 
General  rule,  295. 

Officer  to  whom  process   not   directed,   283,   295. 
Deputy,  proper  return,  waiver  of  defects,  295. 
Where  principal  dead,  295. 
Where   principal   is    defendant,   validity,   296. 
In  divorce  proceedings,  295,  298. 
Private   individual,   affidavit,   295-296. 
Any  one  who  might  serve  notice,  296. 
Constable,    necessity   for   affidavit,   295-296. 
When  process  to   issue  and  when   returnable,   296-297. 
When   issued,   296-297,  3P1-322. 
When   returnable,  296-297,  321-322. 
Effect  of  illegal  return  day,  297. 
Scire  facias  on  a  recognisance,  297. 
Garnishment,    297. 

Service  of  process  on  natural  persons,  297-309. 
Personal  service,  what  is,  297. 
Where  made,  298. 

On  non-resident  found  in  jurisdiction,  302. 
Personal  judgment  on,  302. 
Substituted    service,    what    is,    297-298. 

Strict  construction  of  statutes  allowing,  297-298,  299,  300. 

Manner  of  making,  the  statute,  298-299. 

Methods    successive    not   cumulative,   298-299. 

The   return   on,   requisites,   298-299,   300. 

Choice  in  manner  of  service,  299. 

Service  at  "residence,"  sufficiency,  299-300. 


1146  INDEX 

[References  are  to  pages.] 

PROCESS— Cont'd. 

Service  of  process  on  natural  persons — Cont'd. 
Substituted   service,  what  is — Cont'd. 
Presumptions,    300. 

Who   is   "member   of   his    family,"    300. 
Sufficiency  as  basis  for  personal  judgment,  300. 

By  "posting,"   300-301. 
None    against    married    women,    301-302. 
Constructive   service,  what   is,  297-298. 

Personal  judgment  on  against  non-resident,  validity,  302- 

303,  304. 

Judgment  in  rem  on,  302-303. 
Sufficiency    of    in    proceeding    to    determine    status    of    a 

citizen,  divorce,  303-304. 
Submission   by   non-resident   to  jurisdiction,   304. 

Acknowledging  "due"   or   "legal"   service   as,   304. 
Time  of  personal  service  outside  State,  304. 
Personal  service  outside  State,  effect,  302-304. 
When  action  is  in  personam  and  when  in  rem,  305. 
Conclusiveness  of  personal  judgment  as  to  service  and  lia- 
bility, 305. 

Party  duly  cited  but  hearing  denied  him,  305-306. 
Appearance   as  waiver  of  defects  in  process  or  service, 

305. 

Domestic  judgment,  contradicting  record  as  to  service,  305. 
Foreign  judgment,  contradicting  record  as  to  service,  305. 
Proceeding  not  judicial,  depriving  of  jury  trial,  306. 
Defenses  to  foreign  default  judgment,  305-306. 
Infants,    306-308. 

Whether  personal  service  essential,  66,  306-308. 
Appointment  of  guardian  ad  litem  as  substitute,  306-308. 
Where  infant  a  non-resident,  307-308. 

Personal    service    necessary    to    personal    judgment, 

307-308. 
Personal  service  not  necessary  to  judgment  in  rem, 

308. 

Failure  to  appoint  guardian  ad  litem,  effect,  308. 
Necessity  of  answer  by  guardian  ad  litem,  308. 
Insane  persons,  309. 

Guardian  ad  litem,  309. 
Action   before   adjudication,   309. 
Action    after    adjudication,    309. 
Committee,  309. 

In  proceedings  to  test  sanity,  309. 
Court   receivers,   61-62,  309. 
Convicts,  71-72,  294. 


INDEX  1 147 

[References  are  to  pages.] 
PROCESS— Cont'd. 

Service  of  process  on  corporations,  309-321. 
In    general,   309-310. 

At   common   law,   309-310. 
Under   state    statutes,   310. 
In    Federal    Courts,   310. 
Domestic   corporations,   310-314. 
Cities    or    towns,    283-284. 
Banks,   283-284,   310. 
Railroad    companies,    283-284. 
Insurance    companies,    283-284,    310. 
Other  corporations,   283-284. 
On    officers,    preference    among   class,    310. 
When   served  on  agent,  310. 

When  sent  out  of  county  and  served  on  officer,  310-311. 
By    publication,    personal    judgment,    311. 

Order   of   publication,    form   and   procedure,   320-321. 
Provisions  as  to  service  successive  not  cumulative,  311. 
Defunct  corporation,  service  on  late  president,  311. 
Who   is  "agent,"  311. 
Where  served,  return,  284,  311-312. 
Service   must   be   personal    not   substitutional,   312. 
Effect  of  service  on  de  facto  officer,  312. 
Judgment    by    default    against    on    publication,    validity, 

312-314,   320. 

Service  by  publication  and  mail,  312-313. 
"Due  process  of  law,"  312-314. 
Foreign  corporations,  314-320. 
Are  not  citizens,  314. 

Powers  of  State  over,  constitutional  limitations,  314-316. 
Doing  business  in  State,  what  is,  effect  of,  316. 
Service   on  agent,  283-284,  316-317. 

Who  is  "agent,"  316-317. 
Statutory  agent,  317. 

Service  on  out  of  county  of  suit,  317-318. 
On    statutory    agent   in    another   county,   318. 
Residence  of  statutory  agent  as  that  of  corporation,  318. 
Who  may  serve,  317. 

Service  must  be  personal  not  substitutional,  317. 
Where  served,  317-318. 
By    publication,    316-321. 
Prerequisites    to,    318. 
Judgment  in  rem  on,  validity,  318-319. 
Necessity  for   notice,   320-321. 
Settling   title    to    land   by,    specific    performance, 
321. 


1148  INDEX 

[References  are  to  pages.] 

PROCESS— Cont'd. 

Service  of  process  on   corporations — Cont'd. 
Foreign   corporations — Cont'd. 
By  publication — Cont'd. 

Judgment   in  personam,   on,   validity,   318-320. 

Order  of  publication,  form  of  and  procedure,  320-321. 

Strict   construction    of    statute,    effect   of    mistake   in 

names,   321. 

No  posting  of  order  required,  320,  321. 
On  officer  casually  in  State,  319. 

Personal  judgment  on  such   service,  319. 
Not   doing  business,  service  on  State  officer   designated 

by   statute,   effect,   319-320. 
Upon  resident  director,  319-320. 
Time  of  service,  321-322. 

On  or  before  first  rule  day  to  which  returnable,  296-297,  321. 
Service  on   Sunday,  321-322. 

Of  attachments,   322. 
On   legal   holidays,   321-322. 
When  must  be  executed  ten  days  before  return  day,  282-284, 

322. 

Computation  of  time,  Sundays,  322. 
Rule  in  West  Virginia,  297,  322. 
Return  of  process,  323-325. 
Return  defined,  323. 

Requisites,  signature,  323. 

By  deputy,  effect   of  omitting  principals'   name,  295,   323. 
Default  judgment  on  invalid  return,  effect,  323. 
Amendments,   when   allowed,  323-324. 

Effect  of,  324. 
Form  of  return,  in  general,  324. 

Of  service  on   officer  of  corporation,  324. 
Of  service  on  agent  of  corporation,  324. 
As  record,  assailing,  325. 

When  return  by  private  person,  325. 
Defective    service,    325-327. 

Effect  of  where  writ  valid  and  service  personal,  325-326. 

Collateral  attack,  325-326. 
Effect  where  service  is  merely  constructive,  325-326. 

Collateral   attack,   326. 
Amendments,   326. 

Waiver  of  objection   by  general   appearance,  326. 
Special  appearance  for  objection,  326. 

What  is.  distinguished   from  general,  273,  326-327. 


INDEX  1 149 

[References  are  to  pages.] 

PROCESS— Cont'd. 

Defective  service — Cont'd. 

Mode  of   making  objection,  272,   327. 
Plea  in  abatement,  272,  327. 
Mere  motion,  272,  327. 
Notice  by  court  ex  officio,  272,  327. 
Malicious   abuse   of,    see   Malicious  Prosecution. 
See    also   Abatement  and  Revival,   Attachments,   Continuance,  Judg- 
ments, Limitation  of  Actions,  Parties,  Rules  and^Rule  Days,  I'enue. 

PROFERT  AND   OVER 

See  Pleading. 

PROHIBITION 

Definition  of  the  writ,  778. 

Office  of  the  writ,  778-779. 

Where  court  or  judge  has  any  jurisdiction  in  the  proceeding,  779. 

Where   once   existing  jurisdiction   lost,   779. 

To  prevent   execution  of  illegal  or  unauthorized  judgment,   779. 

Against  justice   where   entire   debt   has    been    subdivided,   779. 

Collateral  attack  by  third  persons  in  such  case,  779. 
To  prevent  enforcement  of  default  judgment,  779. 
Against   disqualified  judge,   779-780. 

Lies  only  against  judicial  tribunal  acting  in  judicial  capacity,  780. 
Effect  of  other  adequate  remedy  at  law,  780. 
Frequency  of  use  of  writ,  780. 
Necessity   for   objection   in   lower   court,   780. 
Parties,  780-781. 

Whether  petitioner  must  be  party  to  proceeding,  780. 

Who  proper  parties  defendant,  780-781. 
Procedure,  781. 

Compared  with  that  in  mandamus,  781. 

Suspending    proceedings    sought    to    be    prohibited    pending 

final    decision,   781. 

Original  jurisdiction   of  Court  of  Appeals  in,  see  Courts. 
See  also  Appeal  and  Error. 

PROPERTY 

Remitter  defined,  33. 

Preservation   of  in  Detinue,   see   that  heading. 
Title  to  freehold  as   subject  of  accord  and  satisfaction,  see  Ac- 
cord and  Satisfaction. 

QUIETING  TITLE 

See  Equity,  Ejectment,  Limitation  of  Actions. 


1150  INDEX 

[References  are  to  pages.] 
QUO  WARRANTO 

Disuse  of  ancient  writ,  781. 
Information  in  nature  of,  781. 
Mandate  of  writ,  781. 
Infrequency  of  use,  781. 

When  writ  may  be  awarded  in  Virginia,  781-782. 
Whether  limited  to  case  where   incumbent  mere  usurper   or  in- 
truder, 782. 

Discretion  of  court  as  to  issuing  writ,  782. 
To  test  title  to  office,  782. 

Where  other  full  and  adequate  relief  available,  782. 
By  whom  writ  may  be  prosecuted,  782-783. 
Jurisdictional  amount  as  affecting,  where  question  one  of  title  to 

office,  783. 
Procedure,  783-784. 

The   petition,    form   of,   by   whom   filed   and   to   whom   pre- 
sented, 783. 

When  petition   filed,  the   summons  and  its   service,   783. 

When  bond  required   of  relator,  its   condition,   783. 

When  defendant  fails  to  appear,  783-784. 

When  defendant  appears,  manner  of  making  defense,  784. 

When  allegations   of  information   taken   as   true,   784. 

When   case   may  be  reopened,  784. 

Judgment  when   defendant  found   guilty,   costs,   784. 

When   defendant   found   guilty   of  only  part   of   charges, 

784. 
No  original  jurisdiction  of  Court  of  Appeals  in,  see  Courts. 

See  also  Appeal  and  Error. 

RAILROADS 

Appeals  in  cattle-guard  cases,   see  Justices  of  the  Peace. 

Recovery  of  roadbed  or  right  of  way,  see  Ejectment. 

See  also  Attachments,  Executions,  Mechanics'  Liens,  Process. 

REAL  ACTIONS 

See  Unlawful  Entry  and  Detainer. 

RECAPTION  OF  GOODS 

See  Remedies. 

RECEIVERS 

See  Executions,  Parties,  Process. 

RECOGNIZANCES 

See  Judgments. 


INDEX  1151 

\ 

[References  are  to  pages  | 

RECOUPMENT 

See  Set-Off  and  Counterclaim. 

REDRESS  OF  PRIVATE  WRONGS 

Methods  of,  see  Remedies. 

RE-ENTRY  UPON  LANDS 

See  Remedies. 

RELEASE 

Effect  of,  of  one  of  several  joint  wrong-doers,  or  joint  obligors, 
see  Accord  and  Satisfaction. 

REMAINDERS 

See  Attachments. 

REMEDIES 

.Methods  of  redress  of  private  wrongs  or  civil  injuries,  1-2. 
By  mere  act  of  the  parties,  1-2. 

By  the  act  of  the  party  injured  alone,  1. 
Self-defense,   1-2. 
Recaption   of   goods,   etc.,   1-2. 
Re-entry  upon  lands,  2. 
Abatement  of  nuisance,   2. 
Distress,  2. 

By   the   joint    act    of   both    parties,    1. 
By  the  mere  act  or  operation  of  the  law,  1. 
By  the  joint  act  of  the  parties  and  of  the  law — civil  action,  I. 
See  Accord  and  Satisfaction,  Assumpsit,  Debt,  Action  of,  Landlord 
and  Tenant,  Nuisance,  and  other  specific  titles. 

REMITTER 

See  Property. 

RENT 

See  Landlord  and  Tenant. 

REPLEADER 

See  Motions  after   Verdict. 

REPLEVIN 

Nature  of  action  at  common  law,  220-221. 
Between  landlord  and  tenant,  220. 
Necessity  for  such  action,  220. 

Writ   of  replevin,   how   secured,   its   mandate,   220. 
Tenants'   action   in   replevin,  its  purpose,  220-221. 


1152  INDEX  » 

[References  are  to  pages.] 

REPLEVIN— Cont'd. 

The   declaration,   its   form,  221. 

Particularity   required   in,   221. 
Different   kinds    of    replevin,    221. 

Extended  to  all  wrongful   takings,  221. 

Taking  lawful,  detention  wrongful,  221. 

Property   replevied,   damages,   replevin   in  the  detinuit,  221. 

Goods   not  found,  value   of,   replevin  in   the  detinet,  221. 

Part  of  goods  found,  replevin  in  the  detinuit  and  detinet,  221. 
The  defense,  221-222. 

Never  took  goods,  non  cepit,  221. 

Taking  justified,  how  pleaded,  221-222. 
Avowry   and   cognisance,   222. 
Prayer  of,  222. 
Both  parties'   actors,   222. 
Defendants   claim   set   forth   in,  222. 
Plaintiffs  plea  to,  222. 
Treated   as    complaint,    222. 
Change    of   parties'   positions,   222. 
The  judgment,   222. 

If  plaintiff   succeeds,    222. 

If   defendant    succeeds,    222.  ^ 

Characteristic   feature   of  action,   222. 
The  modern  action  of  replevin,  222-223. 

Scope  and  object,  222-223. 

Replevin   in   the  cepit,  222-223. 

Replevin   in   the   detinet,  223. 

Requisite   title,   same   as   detinue,   223. 

Demand,    necessity    for,    223. 

Bond,   condition,  procedure  when   given,  223. 

Liability    of   sheriff   acting  without    bond,    223. 

Form    of    complaint    under    Codes,    223. 
Replevin   abolished   in   Virginia,   223. 

Substitutes   for,   223. 
History  of  action   in   Virginia,  224. 
Form  of  plea  of  non  cepit,  850. 
When   title   of  possession    not    sufficient,   937. 
Estoppel  to  deny  title  in,  940-941. 
Interpleader  as   substitute   for,    see   Interpleader. 
See   also   Detinue. 

RESIDENCE 

See  Attachments. 

RETAINER 

See    Executors   and   Administrators. 


INDEX  1153 

[References  are  to  pages.] 

RETRAXIT 

See  Dismissal  and  Nonsuit. 

REVIEW 

See   Appeal  and  Error. 

RULES  AND   RULE  DAYS 

Nature  of  rules,  256-258. 
Control   of  court   over,   257. 

When  held  and  how  long  continued,  256,  258. 
Rule  docket,  256. 

No  clerk  to  take,  procedure,  256,  274. 
What  rules  are  made,  time  given,  256. 
At   common   law,   257-258. 
Wholly  statutory,  258. 
Must  be  held,  case  then  docketed,  258. 
Object  and  purpose  of  rule  days,  258-259. 
Theoretically,    258-259. 
Practically,   259. 
Proceedings   at    rules,   259-267. 

Theoretical  unity   of  the   three  days,  259-260. 
Process,  to  which   day  returnable,  260. 
When   exe<*uted  and  returned,  260. 
Rule   against   officer   for   failure   to   return,  260. 
Alias  process,  when   issued,   260. 
Rule    to    declare,   when    given,   256-257,   260. 
Failure  to  file  declaration  within  month,  effect,  257,  260. 
Process  executed,  declaration   filed,  courses  open  to  defend- 
ant, 260-261. 

Stay  away  altogether,  effect,  260. 
Enter  appearance  without  plea,  procedure,  261. 
Appearance    by    counsel    without    contest,   effect,   261. 

Judgment   by  non  sum  informatus,  261. 
Confession  of  judgment,  261. 
On  what  day  of  rules  pleadings  filed,  261. 

Time   of  day,  261. 

Classification   of  orders  resulting  from  rules,  261. 
Writs  of  inquiry,  issue  docket,  office  judgment  docket,  261- 

262,  263. 

No  final  judgment  at,  262. 
Writs   of   enquiry,   262-266. 

In  what  classes  of  cases   entered,  place  on   docket,   262. 

Must  be  executed,  262,  266. 

When   plea   is    filed,   procedure,   262. 

The   assessment   of   the   damages,   procedure,   262-263. 

When   necessary,   in   general,   263. 

—73 


1154  INDEX 

[References  are  to  pages.] 

RULES  AND  RULE  DAYS— Cont' d. 
Proceedings   at   rules — Cont'd. 
Writs   of   enquiry — Cont'd. 

When   not   necessary,   263-265. 
'Debt  on  verbal  promise,  265. 
Debt  on  a  bond  with  collateral  condition,  265. 
In   actions   of   ejectment,   265-266. 
Function  of,  266. 

When  awarded,  though  there  is  office  judgment,  266. 
Amount    of    debts    or    credits    uncertain,    266. 
Filing  writing  sued  on  in  clerks  office,  practice,  266. 
Executed,  setting  aside  judgment,  right  of  defendant  to 

plead,  277. 

Case  put  in  wrong  place  on   docket,  effect,  266-267. 
Service  of  orders  made  at   rules,  267. 
Taking  rules  while   court   in   session,   267. 
Power  of  clerk  after  rules  closed  to  correct  error,  267. 
Rules  in  federal  courts,  267-268. 
In    common    law   actions,   267. 
The   conformity  act,  267. 
In   equity,   267-268. 

Proposed  revision  of  equity  rules',  268. 
Rule'  to  plead,  effect  of  and  proceedings  on,  273-274. 
Cause    always    matures    at    second    rules,    274. 
Powers    of    court    over    proceedings    at    rules,    274-275. 
In   general,  274. 

Failure  of  clerk  to  take  rules,  powers  of  court,  274. 
Reinstating    action    dismissed    because    no    declaration    filed. 

274-275. 
See  Judgments,  Pleading. 

SALES 

See  Attachments,  Executions,  Exemptions,  Mechanics'  Liens. 

SCIRE  FACIAS 

On    recognizance,   when    returnable,    297. 
Judgment  by  default  on,  when  final,  see  Judgments. 
See   Executions,   Judgments,   Process. 

SEALS 

See  Bills  of  Exception. 

SEARCHES  AND   SEIZURES 

Unjustified    search   warrant   as   Malicious  Prosecution,   see   latter 
heading. 


INDEX  1155 

[References  are  to  pages.] i 
SECOND  TRIAL 
See  New  Trial. 

SEDUCTION 

See   Trespass. 

SELF-DEFENSE 
See  Remedies. 

SET-OFF 

See  Set-Off  and  Counterclaim. 

SET-OFF  AND  COUNTERCLAIM 

Set-offs: 

Distinguished    from   payment,   434. 
Statutory  provisions   as   to,   435,  437. 
Definition,  435-437. 
Statutory  origin  of,  436-437. 
Actions  in  which  available,   437. 
Subject   of  set-off,  438-441. 

Liquidated   demands,  what  are,  438-439. 
Availability   of   set-offs,   439-441. 

Character  of  claim  as  affecting,  440. 
Status  of  parties  as  affecting,  440. 

Partnership  or  fiduciary  demands,  440. 
Principal   and   surety,   440. 
Principal    and   agent,   440. 
Manner   of   claiming,   440. 
Debts  not  due,  440-441. 
Acquisition   of  set-offs,  441-442. 

Time  of,  before  or  after  action,  costs,  441. 

Against    assignor    of    non-negotiable    instrument,    effect, 

441. 

Against  holder  of  negotiable  paper,  effect,  441. 
Rights   of   creditors   as   affecting,   441-442. 
By  bank  against  general  depositor,  442. 
Application  of  set-offs,  442-443. 

As  between  assigned  evidences  of  debt,  442. 
Counter  set-offs,  right  of  plaintiff  to  acquire,  442. 
Where'  set-off  against  assignor  exceeds  assignee's  claim, 

442-443. 
Pleading  set-off,   443-445. 

Necessity  of  setting  up  in  plaintiff's  action,  443. 
Burden  of  proof,  443. 

Asserting  one  of  several  items,  or  part  of  entire  demand, 
443. 


1156  INDEX 

[References  are  to  pages.] 

SET-OFF   AND    COUNTERCLAIM— Confd. 
Set-offs — Cont'd. 

Pleading    set-off — Cont'd. 

Manner  of  pleading,  444-445. 
Formal   plea,   444-445. 
List    filed,    444-445. 
Notice  merely,  444-445. 

Where    plaintiff's    proceeding   is    by    motion,    445. 
Set-offs    barred    by    limitation,    remedy    of    plaintiff, 

444-445. 
Recoupment: 

Definition,   446-447. 
Common  law  recoupment,  447. 
Recovery  of  excess,  447. 
As    against    sealed    instruments,    447. 
Virginia   statute   of   recoupment,   448-460. 
Statutory  provisions,   448. 
History    and   purpose    of    statute,    448-449. 
Limitation  to  matters  growing  out  of  same  contract,  449. 
Sealed   instruments  and  recovery  of  excess,  449-451. 
Equitable  defenses,  when  preserved,  450. 
As  repeal  of  the  common  law,  450. 
Remedy    furnished    by    as    exclusive    or    permissive,    449, 

451-452. 
Reinvestment  of  title  to   real  estate,  452-454. 

Where    rescission    of    contract    and    reinvestment    of 

title   required,   452-454. 
Where  no  rescission  is  asked  for  and  none  is  needed, 

452-454. 

Rejection  of  plea  under   statute,   454-456. 
Effect    on    equitable    defenses,    454-455. 
Sale  of  real  estate,  plea  of  complete  damages,  essen- 
tials  of,   455-456. 

Action  for  purchase  price  of  personal  property,   456. 
Notice  of  recoupment,  456. 

Essentials  of  a  valid  plea,  time  for  objection,  456. 
Relief  in  equity,  prerequisites,  456. 
Recoupment  and   set-offs   contrasted,   457-458. 
Who    may    rely    upon    the    statute,    458-460. 
Surety   on   a   bond,   not   party  to   contract,   458,   459. 
Surety    having   claim    growing   out    of    different    transac- 
tions, 459. 

Surety   setting  up   release  of  lien  by  creditor,  459-460. 
Surety   averring   a   want   of   consideration,    460. 
See  Appeal  and  Enror,  Limitation  of  Actions,  Verdicts. 


INDEX  1157 

[References  are  to  pages.] 
SHERIFFS  AND   CONSTABLES 
See  Rules  and  Rule  Days. 

SIGNATURES 

Affidavit  denying,  when  filed  with  nil  debet,  see  Debt,  Action  of. 
See  also  Bills  of  Exception. 

SLANDER 

See   Libel  and  Slander. 

STATE   CORPORATION   COMMISSION 

See  Appeal  and  Error,  Courts. 

STATES 

District   of  Columbia  not  a  State,  99. 

Action    against   for    negligent   injury    of   insane   person   in    State 

hospital,  see  Parties. 
Order  of  liability  of  decedents'  -estate  for  debts  as  between,  and 

United   States,   see  Executors  and  Administrators. 
See  also    Appeal  and  Error,    Attachments,    Limitation  of    Actions, 

Process,   Venue. 

STATUTE  OF  JEOFAILS 

See  Demuirrer. 

STATUTES 

Penalty    given    by,    effect   on    recovery   of   real    damages,    91. 
Penalty  given  by  as  giving  also  action  for  damages,  91. 
Pleading,   when    noticed   judicially   without,    948-950. 
Foreign  laws,  pleading  and  proof  of,  949-950. 

Construction  and  application  of  for  court,  949. 
Abolishing  objections  for  want  of  form,  see  Assumpsit,  Action  of. 
Motion  to  recover  penalty  given  by,  see  Proceedings  by  Way  of 

Motion. 

Recovery  of  penalties  given  by,  see  Action  on  the  Case,  Debt,  Ac- 
tion of. 
See  also  Appeal  and  Error,  Mechanics'  Liens,  Process. 

SUBROGATION 

See  Judgments. 

SUNDAY 

See  Attachments,  Executions,  Process,  Verdicts. 

SUPERSEDEAS 

See  Appeal  and  Error. 


1158  INDEX 

[References  are  to  pages.] 
SUPERVISORS 

See  Counties. 

TAXATION 

See  Appeal  and  Error,  Homesteads. 

TENANCY  IN  COMMON 

See  Ejectment,  Limitation  of  Actions,  Trover  and  Conversion. 

TENDER 

Definition,  371. 
Different  kinds  of,  371. 
Sufficiency   of  tender   of   money,   371-373. 
At  common  law,  371-372. 
Essentials  of,  371. 
Tender  must  be  of  current  money,  waiver,  371-372. 

What   currency  is  legal  tender,  371-372. 
Exact  amount,  372. 
Should   be    unconditional,   372. 
Keeping  tender  good,   372,   375. 
By  and  to  whom  tender  made,   372. 

General  statutory  modifications  of  common  law  rule,  372. 
In   Virginia,   372-373. 

Common  law  rule  susperseded  by  statute,  372-373. 
Paying  money  into   court,  procedure,  373. 
Scope  of  Virginia  statute,  373. 
Form  of  plea,  373-374. 
Essentials  of  plea,  374. 
Effect  of  valid  tender,  374-375. 

On  promise  to  do  something  other  than  pay  money,  371,  374. 

On   promise    to   pay   money,    371,    374. 

As   conclusive    evidence   of   amount   due,   374-375. 

Effect  on  lien  of  tender  of  debt  secured,  375. 

Rule  as  to  judgments,  and  attachments,   375. 

As    release    of    surety,    375. 

Ownership   of  money  after  tender  and   refusal,  375. 

TIME 

Computation  of  under  statutes,  Sundays,  see    Proceedings  by  Way 

of  Motion. 
See  also  Bills  of  Exception,  Process,  Rules  and  Rule  Days. 

TORTS 

As  subject  of  accord  and  satisfaction,  see  Accord  and  Satisfaction. 
Waiving  tort  and  suing  in  assumpsit,  see  Assumpsit,  Action  of. 
See  also  Limitation  of  Actions,  Parties. 


INDEX  1159 

[References  are  to  pages.] 

TRESPASS 

Trespass  vi  et  armis  simply  called  "trespass,"  225. 
Distinction  between  trespass  and  case,  225-227. 
Trespass  used  for  direct  injuries,  225. 
Case  used  for  indirect  injuries,  225. 
Difficulty  of  distinction  at  common  law,  225. 

When  held  to  be  concurrent,  225. 
Tests  laid  down  to  distinguish,  226-227. 
Immediateness  of  injury,  226. 
Intention  or  want  of  intention,  226. 
Consequential  injuries,  226. 
Construction    of    "immediate"    and    "consequential,"    226- 

227. 
Statute  allowing  case  wherever  trespass  would  lie,  225-226. 

227. 

Trespass  unchanged,  scope  of  case  only  change,  227. 
Trespass  vi  et  armis  now  infrequently  used,  227. 

Assault  and  battery,  used  for,  227. 
Case  most  usual  remedy,  227. 

Assault  and  battery,  used  for,  227. 
Species  of  trespass  vi  et  armis,  227-231. 

Trespass  to  the  person,  instances  of,  227. 
Assault,  assault  and  battery,  227. 
False  imprisonment,  seduction,  227. 
Trespass  de  bonis  asportatis,  228. 
When  lies,  228. 
Compared  with  trover,  228. 
Possession,  necessity  for,  228. 
Trespass  quare  clausum  fregit,  228-229. 
Forcible  entries  upon  land,  228. 

By  the  owner,  228. 

Gist  of  action  injury  to  possession,  228. 
Title,  not  important,  228. 

Right  to  exclusive  profits  as  possession,  228. 
Possession  as  following  ownership,  228. 
Possession  in  another  through  owner,  right  of  latter 

to   sue,  228. 
Land  held  by  another  in  adverse  possession,  action 

by  owner,  228. 
Suit  by  lessee  under  void  lease   against  wrongdoer, 

228-229. 
Possession    against    right    of    owner,    action    against 

owner,  229. 

As  remedy  for  seduction,  theory  of  use,  229. 
Joinder  of  counts,  229. 
Now  concurrent  with  case,  229. 
Procedure  where  unlawful  entry  justified,  229. 


1160  INDEX 

[References  are  to  pages.] 

TRESPASS— Cont'd. 

Species   of   trespass   vi   et   armis — Cont'd. 
Trespass  to  try  title,  229-230. 

Form  of  action,  notice  of  object,  229. 

Statutory,  sometimes  supersedes  ejectment,  229. 

Recovery  on  strength  of  plaintiff's  title,  229-230. 

Difference   between   and   quare   clausum  fregit,   230. 

Outstanding  title,  effect,  230. 

South  Carolina,  use  of  action  in,  230. 

General  issue,  effect  of,  230. 

Recovery  in,  damages,  writ  of  possession,  230. 

Improvements,   defendant's   rights   as   to,  230. 
False  imprisonment,  230-231. 

Not  proper  remedy  to  recover  for  death  by  wrongful  act,  231. 
General  issue,  form  and  scope,  232,  849. 
Form  of  memorandum  in  trespass  vi  et  armis,  289. 
Compared  with   Unlawful  Entry  and  Detainer,  see  latter  heading. 
Waiving  tort  and  suing  in  assumpsit  for,  see  Assumpsit,  Action  of. 
See  also  Action  on  the  Case,  Death,  False  Imprisonment,  Process. 

TRESPASS  ON  THE  CASE 

See  Action  on  the  Case. 

TRESPASS  TO  TRY  TITLE 

See  Trespass. 

TRIAL 

Argument  of  Counsel,  526-530. 

Opening  and  conclusion,  526-527. 

Burden  of  proof  as  affecting  right  to,  526. 
When   burden   as   to   damage   only,   526. 

Upon  application  to  probate  a  will,  526. 

When  defendant  entitled  to,  526. 

No  reply  to  first  argument,  right  to  conclude,  526-527. 

Refusal  of  right  as  ground  for  reversal,  527. 
Number  of  counsel,  527. 
Duration  of  argument,  527-528. 

Discretion  of  trial  court  as  to,  527. 

Reasonable   and   unreasonable    limitations    on,   what   are, 
527-528. 

Rule  in  West  Virginia,  528. 
Reading  law  books  to  the  jury,  528-529. 

Virginia  rule,  528-529. 

Conflict    in    authorities    as    to    right,    discretion    of    trial 
court,  529. 

West  Virginia  rule,  529. 

True   rule,  529. 


INDEX  1161 

[References  are  to  pages.] 

TRIAL— Cont'd. 

Argument  of  Counsel — Cont'd. 
Scope  of  argument,  529-530. 

Proper  and  improper  subjects  of  comment,  529-530. 
Appeals  to  sympathy  or  prejudice,  530. 
Time    for    objection,    waiver,    530. 
Confined  to  issues,  530. 
Matters  not  in  evidence,  529-530. 

On  a  demurrer  to  the  evidence,  court  and  jury,  530. 
Calling  the  docket,  577-578. 

Order  in  which  cases  are  set  on  docket,  577. 

Disposition  of  case  as  dependent  on  state  of  pleadings,  577- 

578. 
Cases  on  writ  of  enquiry  docket,  578.  * 

Right  to  appear  and  defend  without  pleading,  578. 
Right  to   continuance   on   entry   of  plea,   578. 
Cases   on  issue  docket,   578. 
Right   to   continuance,   578. 

Defendant  alone  ready  for  trial,  non-suit,  effect,  578. 
Plaintiff   ready,    defendant   not,    578. 
Office  judgment   docket,   procedure,   578. 
Opening  Statement  of  Counsel,  479-480. 
Nature  and  object  of  statement,  479. 
Order  of  statement,  480. 
Admissions  in  as  evidence,  480. 
View  and  inspection,  587-589. 

When  allowed  at  common  law,  587. 
When  allowed  under  Virginia  statute,  587-588. 
Discretion  of  court  as  to,  review,  588. 
Expenses  of,  by  whom  paid,  588. 
As  evidence  or  proof,  588-589. 
Utility  of,   589. 
In  criminal  cases,  589. 

Against   prisoner's    protest,    589. 
Necessity  for  prisoner's  presence,   589. 
Necessity  for  presence  of  counsel,  589. 
Necessity  of  issue  in  proceeding  by  motion,  see  Proceedings  by 

Way  of  Motion. 

Of  motions  for  judgment,   see  Proceedings  by   Way  of  Motion. 

See   also  Attachments,  Bills  of  Exception,  Demurrer,  Demurrer   to 

Evidence,    Instructions,    Jury,    Justices    of    the    Peace,    Malicious 

Prosecution,  Mandamus,  Motions  after  Verdict,  Payment,  Process, 

Set-Off  and  Counterclaim,  Unlawful  Ent\ry  and  Detainer,  Verdicts. 


1162  INDEX 

[References  are  to  pages.] 
TROVER  AND  CONVERSION 

Nature  of  the  action,  241-242. 

Form  of  trespass  on  the  case,  241. 

Derivation  of  name,  241. 

Declaration,  allegations  of,  241. 

Gist  of  the  action  and  its  object,  241. 

In  general  same  as  at  common  law,  241. 

Election  between  and  trespass,  241-242. 

Difference  between  and  trespass,  241-242. 
Plaintiff's  title,  242-243. 

What  must  be  shown,  242. 

Conversion,  right  of  property,  possession,  242. 

Possessory  title  essential,  242. 

Possession  as  evidence  of  property,  242. 

Possession  sufficient  against  wrongdoer,  242. 

Title  without  possession,  242. 

Bailee  in  possession,  242-243. 
What  may  be  converted,  243. 

General  rule,  243. 

Specific  chattels,  243. 

Realty,  or  things  partaking  of  its  nature,  243. 

Money  generally,  243. 

Chattels  generally,  243. 
What  constitutes  conversion,  243-244. 

General  rule,  243. 

How  proved,  243. 

Misdelivery  by  bailee,  243. 

Refusal  of  carrier  to  deliver  to  proper  party,  243-244. 

Manual  taking  not  necessary,  verbal  conversion,  244. 

Dominion,  exclusive  or  in  defiance  of  owner,  244. 

Loss  or  destruction  by  tenant  in  common,  244. 

Breach  of  bailment,  rights  of  parties,  244. 

Use  of  property  not  according  to  contract,  244. 
Demand,  244-245. 

When  possession  originally  lawful,  244. 

Its  object,  244. 

After  party  has  parted  with  possession,  object,  245. 

In  case  of  bailee,  effect,  244-245. 
Return  of  property,  245. 

When  conversion  complete,  245. 

When   conversion   temporary,   245. 

Discretion  of  court,  245. 

Lawful  taking,  no   essential  injury,  terms,  245. 

Payment  of  money  into  court,  procedure,  245. 


INDEX  1163 

[References  are  to  pages.] 
TROVER  AND   CONVERSION— Cont'd. 
Damages,  245-246. 

General  rule,  245-246. 

Rule  of  justice,  246. 

Appreciations  and  depreciations  in  value,  246. 

Property  delivered  by  mutual  mistake,  246. 
General  issue,  246. 

What  is,  246. 

Scope  of  and  defenses  permissible  under,  246. 

Special  pleas  not  amounting  to,  246. 

Effect  of  judgment  as  vesting  title  in  defendant,  246-247. 
Form  of  memorandum  in,  289. 

Compared  with  trespass  de  bonis  asportatis,  see  Trespass. 
See  also  Action  on  the  Case,  Process. 

TRUSTS 

Power    of    personal    representative    of    sole    trustee    to    execute 

trust,  45. 

Vacancy  in  office  of  trustee,  how  filled,  45. 

Submission  to  arbitration  by  trustee,  see  Arbitration  and  Award. 
See  also  Clerks  of  Courts,  Courts,  Detinue,  Ejectment,  Executions, 

Homesteads,  Judgments,  Limitation  of  Actions. 

UNITED  STATES 

Order  of  liability  of  decedent's  estate  for  debts  as  between,  and 
State,    see   Executors  and  Administrators. 

UNLAWFUL  ENTRY  AND  DETAINER 

Nature  and  object  of  action,  187-188. 
Origin  statutory,  187. 

Real  action  to  recover  possession  of  land,  187. 
Actual  possession  protected,  187. 
What  is  unlawful  entry,  187. 
Remedy  against  tenant  holding  over,  187. 
Purpose  of  the  statute,  187-188. 

As  against  forcible  or  unlawful  entry,  187. 

Actual  possession  protected,  187. 
As  respects  unlawful  detainer,  187. 

Protects   right  of  possession,   187-188. 
Plaintiffs'  title,  188-189. 
Immaterial,    188. 

Possession   or  right  of  possession  the   question,   188. 
One  in  actual  possession  without  right  or  title,  188. 
The  action  compared  with  trespass,  188. 
Forcible  entry,  evidence  to  sustain,  188. 
Possession,   character  of  required,  188. 

Possession  of  part  claiming  whole,  188. 
Possession  as  following  title,  188. 


1164  INDEX 

[References  are  to  pages.] 

UNLAWFUL   ENTRY  AND   DETAINER— Cont'd. 
Plaintiffs'  title — Cont'd. 

Forcible  entry,  force  essential,  188-189. 

Peaceable  possession  necessary,  what  is  not,   189. 
Pleadings,  189-190. 

Summons  and  no  declaration,  189. 

The  summons,  its  issuance  and  contents,  189,  288. 

Where  and  when  summons  returnable,  189. 

Time   of   service,   189. 

Only  plea  not  guilty,  189. 

Equitable  defenses,  how  made,  189. 

Trial  of  summons,  precedence,  189. 

No  plea,  but  trial  on  merits,  effect,  189-190. 
Venue,  189. 
Contrasted  with  ejectment,  190. 

As  trying  right  to  actual  possession  or  title,  190. 

Difference  in  finality  of  judgments,  190. 
Statute  of  limitations,  190. 

What  is,  190. 

Burden  of  proof,  190. 

Of  right  and  not  of  remedy,  190. 

Recovering  premises  from  tenant  in  arrears,  190-191. 
When  proceeding  to  be  before  justice,  191. 
Right  of  appeal,  191. 
See  Appeal  and  Error,  Justices  of  the  Peace,  Process,  Trespass. 

USE  AND  OCCUPATION 

Of  land,  proceedings  to  recover  for,  see  Assumpsit,  Action  of. 

VARIANCE 

See  Pleading. 

VENDITIONI  EXPONAS 

See  Executions. 

VENDOR  AND  PURCHASER 

Vendor's  lien  not  enforced  out  of  rents  and  profits  of  land,  622. 

Estoppel  of  purchaser  to  deny  title  of  vendor,  940. 

See  Attachments,  Exemptions,  Judgments,  Limitation   of  Actions. 

VENDOR'S  LIEN 

See  Vendor  and  Purchaser. 

VENIRE  FACIAS  DE  NOVO 

See  Motions  after  Verdict. 


INDEX  1165 

[References  are  to  pages.] 

VENUE 

At  common  law,  280-281. 

Action  against  non-residents,  281. 
In  personam  action  against  foreign  corporation,  281. 
In  Virginia,  281-286. 

Wholly  statutory,  281. 

Venue  and  process  statutes  to  be  read  together,  281. 
Cumulative    provisions,    choice    of   jurisdiction,    281-284. 
Specific  provisions,  281-286. 

Where  any  defendant   resides,  281,   285. 
Convict's  residence,  71-72,  285,  294. 
In  action  against  domestic  corporation,  281-282. 
In  action  against  foreign   corporation,  318. 
In  action  against  insurance  companies,  282. 
In  action  to  recover  or  subject  land  to  debt,  282. 
Actions  against  non-residents,  281-282. 
Actions  on  behalf  of  Commonwealth,  282,  284-285. 
Actions  affecting  Commonwealth,  282,  285. 
Where  circuit  court  judge  interested,  282,  285. 
Where  cause  of  action  arose,  282. 

Provision  confined  to  actions  at  law,  284. 

Part  in  jurisdiction,  entire  damages,  285. 

Delivery   by   carriers,   where   cause   of  action    arises, 

285-286. 

Laying  in   pleadings,  287. 
Pleading     venue,     manner     of     and     necessity    for,    see    Pleading 

(Rules  of  Pleading},  and  pp.  911-918. 
Of  action  for  death  by  wrongful  act,  see  Death. 
See  also  Ejectment,  Process,   Unlaivful  Entry  and  Detainer.    . 

VERDICTS 

Different  kinds   of  verdicts,   531. 
Special  verdicts  and  case  agreed,  531-534. 
Special  verdicts,  531-533. 

Definition   of  special   verdict,   531-532. 

Inferring  facts  from  special  verdict,  531-532. 

Finding  the  evidence  as  special  verdict,  532. 

Inferences  of  law,  532. 

Failure  to  find  facts,  remedy,  532. 

Vague  and  uncertain,  remedy,  532. 

Form  of  special  verdict,  532. 

Practice  as  to  preparation  and  settlement  of  special  ver- 
dicts,  532-533. 

Right  to  insist  on  special  verdict,  alternatives,  533. 

As  substitute  for  demurrer  to  evidence,  533. 

As  part  of  record,  533. 


1166  INDEX 

[References  are  to  pages.] 

VERDICTS— Confd. 

Special   verdicts  and   case  agreed — Cont'd. 
Case  agreed,  533-534. 

Other  names  for,  533. 
Definition,  533. 

Compared  with  special  verdict,   533-534. 
Other  facts,  inferences,   533. 
When  permissible,   533. 
Issues,  effect  on,  533-534. 
Entry  on  record,  writ  of  error,  534. 
Form  of,  534. 

Where  all  facts  not  agreed  on,  procedure,  534. 
Definition  and  rendition  of  general  verdict,  534-535. 
Rule  of  decision,  535. 
Definition,  535. 
Oral  or  written,  535. 

Variance  between  written  and  record  verdict,  535. 
Unsigned  verdict,  535. 
Essentials  of  a  general  verdict,  535-548. 

The  verdict  must  respond  to  all  the  issues,  535-536. 
When  general  finding  for  defendant  sufficient,  535. 
Different    pleas,    general   verdict   for   plaintiff,    535. 
Joint  defendants,  pleas  several,  general  verdict  for  plain- 
tiff, 535. 

Joint  defendants,  single  plea,  form  of  verdict,  536. 
The  verdict  must  respond  to  the  whole  of  each  issue,  536. 
Joint  contract  action,  verdict  against  survivor  only,  536. 
Incomplete  verdict  in  detinue,  536. 
Action    against    joint    tort    feasors,    joint    plea,    verdict 

against  one,  536. 
The   verdict    should   not   find   matters   outside   of   the   issues, 

536-537. 

Effect   of   such   finding,    surplusage,   536-537. 
The  verdict  must  be  certain,  537-538. 

Specific  elements  requiring  certainty,  537. 
Want   of  form,   reasonable   intendment   in   favor   of  ver- 
dict, 537. 

Certainty  of  description  of  property  and  estate,  537. 
Ejectment,  what  sufficient  finding  of  fee   simple  title  in 

plaintiff,   537. 
Amount,  537-538. 

Verdicts  bad  for  uncertainty  as  to,  537-538. 
Offsets,  what  sufficient  finding  as  to,  538. 
When    the    verdict    necessarily    disposes    of    all    the 
issues,   538. 


INDEX  1167 

[References  are  to  pages.] 

VERDICTS— Cont'd. 

Essentials    of   a   general   verdict — Cont'd. 
The  verdict  must  be  unanimous,  538. 

Withdrawing  assent  in  open  court,  53S. 
Verdicts  by  less  than  all  the  jury,  538. 
The  verdict  should  be  delivered  in  open  court,  538-540. 
Privy  verdicts,   538. 

Sealed  verdicts,  what  are,  practice  as  to,  539-540. 
Effect  of  subsequent  dissent  of  juror,  539. 
Absence  of  juror  at  opening,  539. 
Discretion  of  court  as  to  allowing,  539. 
Sunday,  propriety  of  receiving  verdict  on,  539-540. 
Returning  verdict  in  absence  of  judge,  539. 
Returning  verdict  on  Sunday,  539. 
The  verdict  should  be  received  and  recorded,  540. 
Variance,  recorded  verdict  paramount,  540. 
Amendments,  when  permissible,  procedure,  540. 
Verdict  should  accord  with  the  instructions  of  the   court,  540-541. 
Verdict    in    conflict    with    erroneous    instruction,    effect, 

540-541. 

Verdict  should  not  be  excessive,  541-545. 
Procedure   to   correct,   541-542. 
Appeal  and  error,  542-543. 

What  damages   excessive  where  no  legal  measure,   543-544. 
Damages  plainly  excessive,  procedure,   discretion   of 

court,  544. 
Damages  exceeding  amount  claimed  in  pleadings,  appeal 

and  error,  544-545. 

No   damages   claimed   in   ad  damnum  clause   of   declara- 
tion, effect,  545. 

The  verdict  should  not  be  too  small,  545-548. 
Remedy  in  such  cases,  545-546. 
Rule  for  determining  inadequacy,  545-546. 
Coercing  a  verdict,  effect,  540. 
Chance  verdicts,   definition,  validity  of,  540. 
Quotient  verdicts,  definition,  validity  of,  540. 
Interest,   546-548. 

Verdict  silent  as  to,  from  what  date  allowed,  546. 
Power  of  jury  as  to,  546. 
As  an  incident  of  the  debt,  546. 
When  interest  suspended,  546. 

Promise  to  pay  after  date,  with  interest,  when  interest  starts,  546. 
Contract  to  pay  more  or  less  than  legal  rate,  what  rate  gov- 
erns after  maturity,  546-547. 

Power  of  legislature  to  take  away  interest  on  existing  judg- 
ment, 547-548. 
Money  paid  by  mistake,  time  from  which  interest  runs,  548. 


1168  INDEX 

[References  are  to  pages.] 

VERDICTS— Cont'd. 

Entire    damages    on    defective    counts,    548-556. 
At  common  law,  548. 
Under  statute,   548-556. 

No  request  to  court  to  instruct  jury  to  disregard  defect- 
ive count,  no  demurrer,  or  general  demurrer  over- 
ruled,  validity   of   general   verdict,   548-556. 
Where    court   can   see   verdict   founded    on    defective 

count,   556. 

Request  to  court  to  instruct  jury  to  disregard  defective 
count  denied,  or  demurrer  to  defective  count  over- 
ruled, validity  of  general  verdict,   548-556. 
When  court  can  see  verdict  founded  on  good  count, 

556. 
When     court     doubtful     on     which     count     verdict 

founded,  556. 

Objections  to  verdicts,  557. 
Time  for  making,  557. 

Appeal  and  error,  necessity  for  bill  of  exception,  557. 
Liberal  construction  of  verdicts,   557. 
Form  of  verdict  against  joint  tortfeasors,  see  Parties. 
Verdict  in  Detinue,  see  Detinue. 
Verdict  in  Ejectment,  see  Ejectment. 

See   also  Appeal  and  Error,  Bills  of  Exception,  Demurrer  to  Evi- 
dence, Instructions,  Jury,  Motions  after  Ve\rdict,  Trial. 

VIEW  AND  INSPECTION 

See  Trial. 

VOLUNTARY  CONVEYANCES 

See  Fraudulent  Conveyances. 

WASTE 

See  Ejectment. 

WILLS 

See   Courts,  Executors  and  Administrators,  Homesteads,  Limitation 
of  Actions,  Trial. 

WITNESSES 

See  Bills  of  Exception,  Continuances,  Motions  after   Verdict. 

WORK  AND  LABOR 

Proceedings  to  recover  for,  see  Assumpsit,  Action  of. 

WRIT  OF  ELEGIT 

See  Judgments. 

WRITS  OF  ERROR 

See   Appeal  and  Error. 


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